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LAW AND MORABS. 


THE McNAIR LECTURES, 1923, DELIV- 
ERED AT THE UNIVERSITY 
OF NORTH CAROLINA 


BY 


ROSCOE POUND 


CARTER PROFESSOR OF JURISPRUDENCE IN 
HARVARD UNIVERSITY 





Cuapev Hit, N. C. 


THE UNIVERSITY OF NORTH CAROLINA PRESS 
LONDON: HUMPHREY MILFORD 
OXFORD UNIVERSITY PRESS 


Lia aie 


Copyricut, 1924, sy 
THE UNIVERSITY OF NORTH CAROLINA PRESS 


PriInTED By THE SEEMAN PRINTERY 


Duruay, N. C. 


TO 
HENRY MOORE BATES 


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THE McNAIR LECTURES 


The John Calvin McNair Lectures were 
founded through a bequest made by Rev. John 
Calvin McNair of the class of 1849 which be- 
came available to the Umiversity in 1906. The 
extract from the will referring to the foundation 
is as follows: 

“As soon as the interest accruing thereon shall 
by said Trustees be deemed sufficient they shall 
employ some able scientific gentleman to deliver 
before the students then in attendance at said 
University, a course of lectures, the object of 
which lectures shall be to show the mutual bear- 
ing of science and theology upon each other, and 
to prove the existence of attributes (as far as 
may be) of God from nature. The lectures, 
which must be prepared by a member of some 
one of 'the evangelic denominations of christians, 
must be published within twelve months after 
delivery, either in pamphlet or book form.” 


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PREFACE 


Three subjects stand out in the juristic writing 
of the last century—the nature of law, the rela- 
tion of law to morals, and the interpretation of 
legal history. The first was debated by the three 
nineteenth-century schools down to the end of the 
century. The second was debated by the ana- 
lytical and the historical jurists, as against the 
eighteenth-century identification of the legal with 
the moral, and by the several types of the philo- 
sophical ‘school, as between theories of sub- 
ordination of jurisprudence to ethics and different 
theories of contrasting or opposing them. The 
third did not concern the analytical school. It 
was discussed by historical and by metaphysical 
jurists with reference to ethical and political in- 
terpretations. Later the mechanical sociologists 
argued for different types of ethnological and bio- 
logical interpretation, while others, especially the 
economic realists, urged some form of economic 
interpretation. Both the controversies as to the 
nature of law and the interpretations of legal 
history are intimately related to the controversies 
as to the relation of law to morals. In a sense 
that relation was but one phase of the problem of 


ii PREFACE 


the nature of law. Moreover the nature of law 
was involved in all interpretation of its develop- 
ment. 

Today discussion of the nature of law is com- 
ing to be replaced by consideration of the end 
or purpose of law. Likewise the older discus- 
sions as to law and morals are coming to be 
merged in broader consideration of the place of 
law in the whole process of social control. And 
interpretation of legal history is ceasing to be 
debated on the hypothesis that there is some one 
simple idea upon which all the phenomena of law 
and of the history of law may be strung for every 
purpose and for all time. Yet the nineteenth- 
century discussions are far from having lost im- 
portance. We must work with the legal mate- 
rials and with the juristic tools that are at hand, 
and we shall not understand those materials and 
their possibilities, nor shall we know the possi- 
bilities of those tools, except by critical study of 
the juristic thought of the immediate past. 

Thus a history of juristic thought in the last 
century must precede an effective science of law 
for today; and one part of that history must be 
an account of juristic thought with respect to the 
relation of law to morals. But it must be re- 
membered that this is only part of a larger story. 


PREFACE iit 


When presented as such, it must be to some ex- 
tent a piece torn out of its setting in the whole. 
Nevertheless, if it is to be presented within the 
compass of a brief series of lectures, one must 
essay this tearing out process. And it is worth 
while to attempt to do so. For no small part of 
the task of the jurist of today is to appraise the 
value for present purposes of the science of law 
as it was in the last century. The first step in 
this appraisal must be to understand thoroughly 
the theories he is to appraise, and to do this he 
must apprehend the needs for which they were 
devised and their relation to the juristic problems 
of their time. 

A complete treatment of the relation of law 
and morals would go into the social-philosophical 
and sociological theories of today no less elabor- 
ately than I have sought to go into the historical 
and analytical and metaphysical theories of the 
last century. But the limits of the series forbade. 
Moreover, the lesser task, to which alone the 
present lectures address themselves, is a neces- 
sary forerunner of adequate treatment of cur- 
rent theories. | Rake 


Harvarp Law ScHOOL, 
March 31, 1923. 


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CONTENTS 


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LAW AND MORALS 


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If we compare the juristic writing and judicial 
decision of the end of the eighteenth century with 
juristic writing and judicial decision at the end 
of the nineteenth century, the entire change of 
front with respect to the _nature of law, with re- 
spect to the source of the obligation of legal pre- 
cepts, and with respect to the relation of law and 
morals and consequent relation of jurisprudence 
and ethics, challenges attention. Thus Black- 
stone! speaks of “ethics or natural law” as 
synonymous, and of natural law as the ultimate 
measure of obligation by which all legal precepts 
must be tried and from which they derive their 
whole force and authority.2, Again Wilson’s lec- 
tures on Law (delivered in 1790-1791 by one of 
the framers of the federal constitution and a jus- 
tice of the Supreme Court of the United States) 
begin with a lecture on the moral basis of legal 
obligation and a lecture on the law of nature or 


11Bl. Comm. 41. 


2“This law of nature, being co-eval with mankind and dic- 
tated by God himself, is, of course, superior to any other. It 
is binding all over the globe, in all countries and at all times; 
no human laws are of any validity, if contrary to this; and such 
of them as are valid derive all their force and all their validity 
mediately or immediately from this original.” Ibid. 


2 LAW AND MORALS 


the universal moral principles of which positive 
laws are but declaratory. In contrast, the insti- 
tutional book of widest use in English-speaking 
lands at the end of the nineteenth century begins 
with an elaborate setting off of law from “all 
rules which, like the principles of morality .. . 
are enforced by an indeterminate authority” and 
conceives that natural law is wholly outside of 
the author’s province. Likewise Mr. Justice 
Miller, lecturing upon the constitution in 1889- 
1890, finds no occasion to speak of natural law 
nor of ethics but puts a political and historical 
foundation where Mr. Justice Wilson had put an 
ethical and philosophical foundation.5 The same 
contrast appears, no less strikingly, if we com- 
pare eighteenth-century decisions on quasi con- 
tract or on the granting of new trials or on the 
interpretation of statutes with nineteenth-century 
decisions on the same subjects.6 Yet the nine- 


31 Wilson’s Works (Andrews’ ed.) 49-127. 


4Holland, Elements of Jurisprudence, chaps. 3-4. Also com- 
pare with Blackstone the books now in use in England: Odgers, 
The Common Law of England (2 ed.) I, 2-3; Se Bae, om- 
mentaries on the Laws of England (16 ed. by Jenks) I, 11 ff. 

5 Miller, Lectures on the Constitution of the United States, 
Lect. 2, particularly pp. 82 ff. 


© Compare the insistence upon honor and conscience in the old 
decisions on quasi contract—e.g., De Grey, C. J., in Farmer v. 
Arundel, 2 Wm. Bl. 824; Lord Mansfield, C. J., in Bize v. 
Dickason, 1 T. R. 285; De Grey, C. J., in Jaques v. Golightly, 2 
Wm. Bl. 273 (not followed today); Lord Mansfield, C. J., in 
Moses v. Macfertan, 2 Burr. 1005 (the result not law today); 


LAW AND MORALS 3 


teenth-century doctrines as to the nature of law, 
the obligation of legal precepts, and the relation 
of law and morals are intimately connected with 
the seventeenth and eighteenth-century doctrines 
on these points, in part as developments of differ- 
ent phases thereof, and in part as different forms 
of reaction therefrom, and in turn the natural- 
law doctrines have a like relation to theories that 





Lord Loughborough, C. J., in Jenkins v. Taylor, 1 H. Bl. 90— 
with the complacent mechanical working out of an unjust result 
in Baylis v. Bishop of London, [1913] 1 Ch. 127. 


As to the granting of new trials, compare Deerly v. Duchess 
of Mazarine, 2 Salk. 646; Farewell v. Chaffey, 1 Burr. 54; Burton 
v. Thompson, 2 Burr. 664, 665, with Reg. v. Gibson, 18 Q. B. D. 
537, 540: Waldron v. Waldron, 156 U. S. 361, 380. 


In Deerly v. The Duchess of Mazarine ‘the jury found for 
the plaintiff, though the Duchess gave good evidence of her 
coverture; and the court would not grant a new trial because 
there was no reason why the Duchess, who lived here as a feme 


sole, should set up coverture to avoid the payment of her just 
debts.”’ 


In Reg. v. Gibson, Lord Coleridge, C. J., says: ‘Until the 
passing of the Judicature Acts the rule was that if any bit of 
evidence not legally admissible, which might have affected the 
verdict, had gone to the jury, the party against whom it was 
given was entitled to a new trial, because the courts said that 
they would not weigh evidence. When, therefore, such evidence 
had gone to the jury a new trial was granted as a matter of 
right.” So in Waldron v. Waldron, White, J., says: ‘‘It is 
elementary that the admission of illegal evidence, over objection, 
necessitates reversal.” 


As to the statute of limitations, compare Trueman v. Fenton, 
Cowp. 548, Quantock v. England, 5 Burr. 2630, with Shapley v. 
Abbott, 42 N. Y. 443. Undoubtedly in the two cases first cited 
._Lord Mansfield carried his moral objections to the statute too far, 
ignoring other considerations that even a purely ethical view 
should not overlook. But at the other extreme the nineteenth- 
century decision is needlessly callous toward ethical considerations 
and proceeds upon a logical deduction from a form of words. 

See also Willes, J., in Miller v. Taylor, 4 Burr. 2303, 2312 
(1769) saying that ‘‘justice, moral fitness and public convenience 
. . « when applied to a new subject, make common law with- 
out a precedent,” and compare Lord Macnaghten in Blackburn v. 
Vigors, 12 App. Cas. 531, 543 (1887). 


+ LAW AND MORALS 


had developed prior to the sixteenth century when 
jurisprudence was but a branch or an application 
of philosophical theology. Indeed the theological 
basis of jurisprudence continued to be urged till 
well into the nineteenth century.* 

All discussion of the relation of law to morals, 
of the relation of jurisprudence to ethics, goes 
back to the Greek thinkers of the fifth century be- 
fore Christ, who enquired whether the right or 
the just was right and just by nature or only by 
convention and enactment. In the Greek city- 
state law was differentiating from a general so- 
cial control as the normal and most efficacious 
form thereof. Thus it attracted the attention of 
thinkers as requiring a surer basis of obligation 
than the mere habit of obedience or the mere will 
of those who controlled political machinery for 
the time being. The Greek philosopher noted 
that while the phenomena of nature were uni- 
form, the sun rose and set, fire burned and water 
flowed in Greece, in Persia and at Carthage, on 
the other hand, human laws and customs and ob- 
servances were as diverse as possible, not only as 
between Greeks and other peoples, but as between 
the several Greek cities themselves, and even in 
1 Bl. Comm. 40 ff.: 1 Wilson’s Works (Andrews? ed.) 105 


ff.; 1 Kent, Comm, 2; 1 Minor, Institutes of Common and Statute 
Law, Intr. sect. ii. 


LAW AND MORALS 5 


the same city at different times. Also he saw 
that this well known fact, tending to produce 
doubt as to the binding force of legal precepts, 
and to make them appear something subject to 
the arbitrary power of oligarchy or of demos, ac- 
cording as the one or the other was politically 
dominant for the moment, endangered the gen- 
eral security. The old-time explanations that 
law was the gift of a god,® or the teaching of the 
wise men who knew the good old customs accep- 
table to the gods,!° or the more modern explana- 
tion that it was something to which all the citizens 
had agreed, binding therefore with the sanctity of 
a formal promise,!! did not satisfy in the contests 
between the aristocracy and the mass of the low 
born, in the struggles of the demos to hold in 
check masterful god-descended individuals with 
scant respect for humanly imposed restrictions 
upon their god-given powers, and in the compe- 
tition between the remnants of a class tradition 

8 Pseudo-Plato, Minos, 315 B, 315 C, 316 A; Aristotle, Nicoma- 
chaean Ethics, v, 7. Plato, Protagoras, 337 D; Archelaus, ap. 
Diog. Laert. ii, 16. Cf. Cicero, De Republica, iii. 

® Demosthenes, Against Aristogeiton, 774; Cicero, Philippic. xi, 
12, 28. Compare Heraclitus on law, Diels, Fragmente der Vor- 


sokratiker, fr. 44. 

10 Demosthenes, Against Aristogeiton, 774. Or that it was a 
body of tried customs of immemorial antiquity. Pseudo-Plato, 
Minos, 321 B, 321 C; Plato, Laws, 797 D. 

11 Demosthenes, Against Aristogetton, 774; Plato, Crito, 50 C, 
51 D, 52 D; Pseudo-Plato, Minos, 314 C; Xenophon, Memora- 
bilia, 1, 2, § 43; Anaximenes, quoted by Aristotle, Rhetoric to 
Alexander, i. 


6 LAW AND MORALS 


and the tendency to substitute arbitrary enact- 
ments established by legislative fiat at the instance 
of a demagogue.!2 Hence the philosopher sought 
to find a foundation for assured security of the 
social order through the analogy of the constancy 
and universality of the everyday phenomena of 
physical nature, exactly as the positivist sociolo- 
gists today seek to find general laws of social 
phenomena of the same sort, and to be discovered 
in the same way, as the laws of physics or of 
astronomy.!8 But the time was not ripe for a 
natural science of the social and legal order in 
the modern sense of “natural,” and the attempt 
to distinguish between the permanent and the 
transitory in social control could be made only 
from the standpoint of a metaphysical ethics. 

In the hands of Roman lawyers, the Greek 
theories of what was right by nature and what 
was right by convention or enactment gave rise 
to a distinction between law by nature and law by 
custom or enactment. For the growing point of 
Roman law, when it came in contact with Greek 
philosophy, was in the opinions and writings of 
the jurisconsults, who had no formal lawmaking 


2 Plato, Laws, 797 D. 


18 Durkheim, Les régles de la méthode sociologique (6 ed.) 176- 
Se La morale et la science des moeurs (5 ed.) 


LAW AND MORALS 7 


authority. Their opinions had to maintain them- 
selves on the basis of their intrinsic reasonable- 
ness. As the Greeks would have put it, they were 
law, if at all, by nature rather than by custom or 
enactment. The right or the just by nature be- 
came law by nature or natural law, and thus be- 
gins the identification of the legal with the moral 
that has been characteristic of natural-law think- 
ing ever since.!4 

To the later Middle Ages Aristotle and Jus- 
tinian were authorities to be interpreted only. 
Hence the doctrine of natural law, set forth by 
these authorities, was received, without any re- 
ception of the creative method or critical measur- 
ing of legal precepts by moral standards which it 
implied. For the Middle Ages did not need a 
creative theory as such. On the one hand, there 
was need of a stabilizing theory, after centuries 
of disorder. On the other hand, there was need 
of a general law to supersede, or to eke out and 
give a new start and better guidance to, the local 
laws and customs which were proving inadequate 
pit Witte how Cicero seeks to expound the concrete content otf 
Tae ai 181 7 it 5. ne He : eee , ates ne A thieal 
RE eiitetisin view of the naterajetione's uindcetaione and 
thus became a legal duty. E.g., compare Cicero, De offcits, iii, 


17, 70, and Cicero, De natura deorum, iii, 30, 74, with Gaius, iv, 
§ 62 and Inst. iv. 6, § 30. 


8 LAW AND MORALS 


in the progress of society. Authority—the inevi- 
table logical development of unchallengeable texts 
—supplied the one need; so-called interpretation 
of Roman law supplied the other. Natural law 
was proclaimed by the authoritative books and so 
was received. But a_philosophical-theological 
foundation was put under it. It proceeded im- 
mediately from reason but ultimately from God. 
It was a reflection of the “reason of the divine 
wisdom governing the whole universe.’’15 Thus 
natural law for a season was used as a prop to 
authority rather than as a means of shaking it.1¢ 

In the revolt against authority at the Reform- 
ation, the Protestant jurist-theologians eliminated 
the theological side of medieval natural law and 
sought to put it once more squarely on the basis 
of reason. But Grotius, starting out by adopting 

15 “A rule of law is nothing else than a dictate of practical 
reason in the ruler who governs a perfect society. But supposing 
that the world is ruled by divine Providence, it is manifest that 
the whole society of the universe is governed by divine reason. 
Hence the plan of governing things as it exists in God the ruler 
of the universe, has the character of law. . .° This manner 
of law must be called eternal. . . Since all things subject to divine 
Providence are ruled and measured by the eternal law, it is 
manifest that they all participate in the eternal law to some 
extent. . . But . ... the’ rational creature is. subject eo 
divine Providence in a more excellent way, being itself a par- 
taker in Providence. Hence it has a participation in the eternal 
law. . . Such participation in the eternal law on the part of a 


rational creature is called natural law.” Thomas Aquinas, Summa 
Theologiae, i-ii, qu. 91, art. 1-2. See id. qu. 93, art. 1-3, 6. 


% See Figgis, Studies of Political Thought from Gerson to 
Grotius, 7-8. 


LAW AND MORALS 9 


this divorce of jurisprudence from theology,!7 re- 
verts to the theological and puts the natural law 
from which the law of the state derives all its 
force and validity upon two bases: (1) eternal 
reason, and (2)) the will of God who wills only 
reason.1® The same twofold basis may be seen 
in Blackstone.19 Yet with all these writers the 
real foundation is manifestly rational. As Hem- 
mingsen put it, reason may show us the whole of 
their scheme of natural law “without the pro- 
phetic and apostolic voice.”’?° Accordingly Mr. 
Justice Wilson tells us, by way of explanation, 
that God “is under the glorious necessity of not 
contradicting himself”?! and thus of conforming 
to the exigencies of human reason. As _ the 
scholastic theologians had set out to convince and 
convert the infidel and the heretic by sheer force 
of reason, the natural-law jurists, in an age of 
scepticism, were eager to convince all men upon an 
unimpeachable basis of reason and thus secure a 
general adherence to the precepts of the legal 
order. 


17 De jure belli ac pacis, prolegomena, § 11. 
48'Td. §. 12. 
191 Bl. Comm. 42. 


2 De lege naturae apodictica methodus, preface; Kaltenborn, 
Die Vorlaifer des Hugo Grotius, II, 43. 


211 Wilson’s Works (Andrews’ ed.) 124. 


10 LAW AND MORALS 


In the nineteenth-century the matter came to 
be put in a wholly different way. Down to Kant 
at the end of the eighteenth century positive law 
or conventional right, on the one hand, had been 
contrasted with a body of ideal moral and hence 
legal precepts—natural law—on the other hand. 
Kant instead set over against positive law the 
immutable principles of positive legislation—the 
principles of making positive law.?2. This is not 
natural law in the seventeenth and eighteenth- 
century sense. It is not a body of moral and 
hence legal precepts which is law in the same 
sense as the positive law only in a higher form. 
He thinks rather of certain eternal, immutable 
principles governing the making of law, by which 
law and lawmaking must be judged. Kant wrote 
before the historical school, at a time when 
legal institutions and systems of positive law as 
well as single legal rules and doctrines were re- 
garded as products of human wisdom.?* But his 


“‘Rechtslehre is the aggregate of the rules of right for which 
an external lawmaking is _ possible. . . Rechtswissenschaft 
means the systematic knowledge of natural Rechtslehre. It is 
from this science that the immutable principles of all positive 
legislation must be derived by practical jurists and lawgivers.” 
Kant, Metaphysische Anfangsgriinde der Rechtslehre, Untroduc- 
tion, § A (1797). 

33 E.g., Dr. Johnson said that “the law is the last result of 
human wisdom acting upon human experience for the benefit of 
the public.”” Boswell, Life of Johnson (Croker ed., 1859) II, 
258. Compare Hale’s view as to the statutory origin of the 
common law, History of the Common Law, 3-4, 67-68. See also 
vee Storia della storiografia Italiana nel secolo decimonono, I, 


LAW AND MORALS 11 


is not in truth a creative theory. It belongs rather 
to the next century in which more and more law 
was thought of, not as a product of wisdom, but 
as a spontaneous evolution. It is a critical theory. - 
He does not find an ultimate pattern code of 
rules with reference whereto we may make new 
positive precepts with confidence. He finds ulti- 
mate principles of criticism by which we may 
criticize what we have already. All that he has 
in common with the philosophical jurisprudence 
of his predecessors is a belief that he can find 
something eternal and immutable on which the 
law may be rested. But that something is quite 
different from what the classical jurists of the 
law-of-nature school had been finding, and is 
reached in another way. He begins with the 
conscious free-willing individual man as an ulti- 
mate metaphysical datum. He finds an ultimate 
principle of right by deduction from a rational 
harmonizing of free wills,?4 not a body of prin- 
ciples of right by deduction from the ideal of 
the abstract man as a moral creature. Thus he 
deduces a principle of right and law by which all 
4 “Acts of will or voluntary choice are thus regarded only in 
so far as they are free and as to whether the action of one can 
Bee heats aicindes’ the whoietat the conditions unter 
which the voluntary actions of any one person may be harmon- 
ized in reality with the voluntary actions of every other person 


according to a universal law of freedom.” Metaphysische An- 
fangsgriinde der Rechtslehre, Introduction, § B, 3. 


12 LAW AND MORALS 


things legal may be measured and justified. In 
consequence natural law entered upon a new era, 
comparable to the natural law of the later Middle 
Ages. It was used no longer to break down the 
authority of received legal materials, nor to bring 
in new materials from outside of the law by 
identifying law and morals, nor to create law. 
It became instead a means of upholding and justi- 
‘fying and systematizing the existing legal order. 
The subordination of law to morals and of juris- 
prudence to ethics was given up.?° 

Note how we have now come back to the point 
from which we set out. The Greeks put a theo- 
retical moral foundation under law by the doc- 
trine of natural rights. The Roman jurists made 
natural right into natural law and sought to dis- 
cover the content of this natural law and to de- 
clare it. Thus they gave us an ethical philo- 
sophical natural law with an ideal form of 
Roman legal precepts, shaped with reference to 
an ideal of the existing social order, for its chief 
content. The Middle Ages put a_ theological 
foundation under natural law, giving us ‘an au- 
thoritative theological natural law, which was 
_ 25 Eg, note the distinction between jurisprudence and ethics 
in the introduction to the Rechtslehre, § C. As to the effect of 


this upon English analytical jurisprudence, see Pound, Interpre- 
tations of Legal History, 98-99. 


LAW AND MORALS 13 


used to sustain the Roman law, as interpreted by 
the glossators and commentators, in the process 
of receiving it as the law of Continental Europe. 
The seventeenth and eighteenth centuries took 
out this theological foundation and replaced it or 
partially replaced it by a rational foundation, giv- 
ing us a rational-theological or rational-ethical 
natural law, which was used to make the strict 
law of the glossators and commentators and the 
feudal land law of medieval England into sys- 
tems of law for the modern world. At the end 
of the eighteenth century Kant replaced the ra- 
tional foundation by a metaphysical foundation, 
giving us a metaphysical natural law used to dem- 
onstrate the obligatory force of the legal order 
as itis. It remained only for the analytical jur-~ 
ists to argue that no foundation was needed; to 
urge that so far as concerns judge or jurist the 
law stands upon its own basis as a system of pre- 
cepts imposed or enforced by the sovereign. If 
we felt inclined to go outside of the body of legal 
precepts so imposed or enforced, they referred us 
to the science of politics.2® Presently the analy- 
tical school in politics in America carried the 
Tit T he philosophical analysis and definition of law belongs, in 
our judgment, neither to the historical nor to the dogmatic 
science of law, but to the theoretical part of politics.”? Pollock 


in Pollock and Maitland, History of English Law (1 ed.) I, xxiii 
(1895). Compare Pollock, Oxford Lectures, 14 (1890). 


14 LAW AND MORALS 


movement for casting out ethics still further and 
limited the science of politics to a descriptive 
analytical method, leaving what ought to be to the 
philosophers as such. Thus the cycle is complete. 
We are back to the state as the unchallengeable 
authority behind legal precepts. The state takes 
the place of Jehovah handing the tables of the 
law to Moses, or Manu dictating the sacred law, 
or the Sun-god handing the code to Hammurabi. 
Law is law by convention and enactment—the 
proposition, plausibly maintained by sophists, 
which led Greek philosophers to seek some basis 
that made a stronger appeal to men to uphold the 
legal order and the security of social institu- 
tions.27 

Already at the end of the eighteenth century 
natural-law thinking had divided into two chan- 
nels. The one led to a purely justifying and ex- 
planatory use of natural law; to a philosophical 
jurisprudence which gave specious ex post facto 
reasons for a settled system of positive legal pre- 
cepts, regarded as an authoritative exposition of 
the ideal natural law of which in theory all posi- 


27 Archelaus, quoted by Diogenes Laertius, ii, 16; Plato, Pro- 
tagoras, 337 D; Pseudo-Plato, Minos, 314 ’B-314 E. Compare 
Xenophon, Memorabilia, iv, 4, 14. See Vinogradoff, Historical 
Jurisprudence, II, 31-42. 


LAW AND MORALS 15 


tive law was but declaratory.28 Thinking of 
positive law as declaratory and of the declaration 
as an effort of human reason, it stressed the au- 
thoritative nature of the reason that had ascer- 
tained and declared the law, at the expense of 
the reasons that would question or criticize it. 
This way of thinking marks the transition from 
the creative natural law of the seventeenth and 
eighteenth centuries, when the law of the world 
of today was remaking out of the strict law of 
the Middle Ages, to the maturity of law with its 
insistence upon security of acquisitions and se- 
curity of transactions and hence upon the rule of 
property as the type of all legal precepts. The 
other kept to insistence upon the positive law as 
declaratory ; but in a time when a creative theory 
was no longer required led to a conception of legal 
precepts as declaratory, not of ideal moral pre- 
cepts, but of customs evolved in the experience 
of life in civilized society. Thus the declaration 
or promulgation was not an act of creation. It 
was a formal recognition of what existed as law 
already—not as an ideal moral rule, binding be- 


®8 Hegel refers to this as ‘“‘the fraud which is inseparably in- 
volved in the method of the understanding and its arguings, 
namely, giving a good reason for a bad thing and assuming that 
in that way one has justified it.’ Grundlinien der Philosophie 
des Rechts (3 ed.) 29. For a striking example see Hyatt v. 
Adams, 16 Mich. 180, 191-192 and the comments in Cooley, 
Torts (1 ed.) 26-28. 


16 LAW AND MORALS 


cause of its intrinsic moral authority, but as a 
custom ‘of popular action having its roots in the 
very spirit of the people.?° 

Although the historical school overthrew the 
natural-law jurisprudence of the eighteenth cen- 
tury, its connection therewith is immediate and 
palpable. It rejected the conception that positive 
law was made by human wisdom. The law-of- 
nature school held that natural law was to be 
discovered but was immutable and eternal. When 
it was discovered, however, positive law might be 
and ought to be made consciously and deliberately 
in its image. The historical school, agreed that 
there was something not made by human wisdom 
which was behind positive law. But they held that 
positive law itself was only to be found. It could 
not be made. When men seemed to make it, the 
work of their hands was futile except as it 
declared or put in better form what existed al- 
ready in human experience and not merely as an 
ideal.8° Under the influence of Hegel, law came 
to be thought of as an unfolding or a realizing of 


2 Savigny, System des heutigen rémischen Rechts, I, $ 7 
(1840). 

% “One might wish to assume that law has a wholly variable 
origin, according to the influence of chance or of human will or 
deliberation or wisdom. But this assumption contradicts the un- 
doubted fact that everywhere, when a relation of right and law 
comes in question or men become conscious of it, a rule therefor 
is already at hand and hence it is neither necessary nor pos- 
sible to invent it for the first time.’’ Jbid. 


LAW AND MORALS 17 


the idea of right. Legal history was a record of 
how the idea of right had realized itself pro- 
gressively in human experience of the administra- 
tion of justice.81 Thus for a time the historical 
school kept up a certain relation of jurisprudence 
to ethics. But before long the ethical interpre- 
tation gave way to a political interpretation. An 
idea of freedom took the place of the idea of 
right.32, Ethical considerations were banished, 
from historical jurisprudence.*% 

To the historical school the jurist is observing 
or studying the realization of the idea of right, or 
of the idea of freedom, in experience in society, 
and the unconscious or spontaneous formulations 
of that experience in general moral sentiment, in 
customs of popular action, and in customs of 
judicial decision. They saw clearly that the 
formal legal precept as such by no means did the 
whole work of administering justice; that there 
was something else, that entered decisively into 
all the work of tribunals, that was not to be 
found in the texts of,codes or statutes. The 


31 See Pound, Interpretations of Legal History, 22-23, 25-49. 

82 Puchta, Cursus der Institutionen, § 2 (1841); Lorimer, In- 
stitutes of Law, (2 ed.) 354-355 (1880); Carter, Law: Its Origin, 
Growth and Function, 336-337 (1906). See Pound, Interpreta- 
tions of Legal History, 45-68. 

83 Maine, Early History of Institutions, lect. 12 (1874). See 
Lord Russell, International Law, 19 Rep. Am. Bar Assn. 253, 
268 (1896). 


18 LAW AND MORALS 


natural-law jurists had seen this also and had 
identified the unexpressed something with an 
eternal, ideal system of moral and hence legal 
principles which the positive law could but im- 
perfectly reflect. The historical jurists identified 
this decisive but unexpressed element with habit 
and custom,°4 which in turn they traced back to 
the spirit of the people and thence metaphysically 
to the idea realizing itself in and through that 
spirit.2> But they thought of this element in 
terms of customs of popular action and of human 
intercourse in civilized society, and thus ignored 
the chief factor in judicial and juristic shaping of 
legal precepts, namely, habits of thought as to 
what comports with an ideal of the end of law 
and of a system of legal precepts in view thereof. 
The natural-law theory comes much nearer to de- 
scribing this element in what we call “the law” 
than the historical theory of “custom.” 

Orthodox historical jurisprudence of the nine- 
teenth century rejected all creative participation 
of judge or jurist or lawgiver in the making or 
even the real formulation of the law. It conceived 
Clarke treatise Jurisprudence, 151, 331-332 (1883); Carter, 
The Ideal and the Actual in Law, 10 “11 (1890); Jenks, Law and 
Politics in the Middle Ages, 56- 63 (1897); Rattigan, Science of 
Jurisprudence, § 72 (1899); Bryce, Studies in History and 


Jurisprudence, 640, 672-673 (1901). Compare Ehrlich, Grundle- 
gung der Soziologie des Rechts, 352-380. 


% See Pound, Interpretations of Legal History, lects. I-III. 


LAW AND MORALS 19 


that the judge was neither the molder of the legal 
precept nor the agency by which it was given 
effect. He but recognized it. The precept was 
given its real force by the “social standard of 
justice.” It was found and given technical ex- 
pression by the court in its search for the binding 
rule.2° It was obligatory because of its intrinsic 
force as an expression of a principle of action 
discovered by human experience, and that experi- 
ence, in turn, was significant because it involved 
the realization of an idea.27 

Thus “custom” took the place which morals had 
held in the juristic thought of the two preceding 
centuries. But when the nineteenth-century jur- 
ists spoke of “custom” they meant more than one 
thing. They used the term customary law to in- 


86 Carter, The Ideal and the Actual in Law, 10-11 (1890). 


87 “Right and law are a product of the will of the people. But 
a people only wills what expresses its stage of civilization and its 
needs for the time being. Therefore right and law develop in 
space and time. They have a history because they are human 
facts, a history, that is, in the sense of ‘an unfolding of its 
nature in which it maintains its identity unchanged.’ Hence to 
understand the present position of a people in its legal life, and 
in order to perceive what it must will with respect to right and 
law, an adequate investigation of its history is required. Now 
since every people has a share in the development of right and 
law and here as in all other respects it gives us a picture of 
humanity in miniature, it follows that right is living in every 
people but complete in all peoples.” Friedlander, Juristiche En- 
cyklopddie, 65 (1847). 

“A positive law in its widest sense may be defined as the ex- 
pression of the idea of right involved in the relation of two or 
more human beings.”’ Miller, Lectures on the Philosophy of Law, 
9 (1884). 


20 LAW AND MORALS 


clude three distinct types of legal precept, looked 
at with*respect to their source: (1) law formu- 
lated through custom of popular action, such as 
the older mining law of our western states, or the 
older law merchant, (2) law formulated through 
customs of judicial decision, such as the bulk of 
Anglo-American common law, (3) law formu- 
lated through doctrinal writing and scientific dis- 
cussion of legal principles, such as the civil law 
(or as it is called on its own ground, the com- 
.mon law) of Continental Europe.®8 In the writ- 
ings of the historical school customs of judicial 
decision and traditional lines of doctrinal writing 
were treated as if they were but examples of or 
reflections of customs of popular action, even 
though it might well be that they derived from 
Greek philosophical speculation,?® or from the 
legal problems of republican Rome,*® or from 


88 See Clark, Roman Private Law: Jurisprudence, I, §§ 7-8, 
particularly pp. 348-351, 403, 407-413. 

89 E.g., the rules as to border trees. See Aristotle, Hist. Ani- 
mal, v, 1; Aristotle, Meteorol. iv, 8; Digest, xxix, 2, 9, § 2, xli, 1, 
26, § 1; Inst. ii, 1, 31; Bracton, fol. 10; Waterman v. Soper, 1 
Ld. Raym. 737; Anon. 2 Rolle, 255. But the settled rule is now 
otherwise at common law, if it is known on which side of the 
line the tree was planted. See also Sokolowski, Philosophie im 
Privatrecht, I, 148 ff. 

© E.g., the rule in equity as to legacies on impossible or illegal 
conditions precedent. Lowther v. Cavendish, 1 Eden, 99 (1758); 
Brown v. Peck 1 Eden, 140 (1758); In re Haight’s Will, 51 App. 
Div. 310. See Pound, Legacies on Impossible or Illegal Con- 
ditions Precedent, 3 Ill. Law Rev. 1, 4-6. 


LAW AND MORALS 21 


scholastic subtleties of the Middle Ages,#! and 
though it happened often that the traditional 
course of judicial decision or of doctrinal thought 
and the customary course of popular thought on a 
given point were wholly at variance.42 For the 
historical jurist assumed without question the 
truth of a mode of juristic speech that had pre- 
vailed since the seventeenth century. In the later 
Middle Ages the academic theory of the statutory 
binding force of the legislation of Justinian as 
the law of the “empire” passed over to the courts, 
and it had become accepted by the sixteenth cen- 
tury. In the seventeenth century it was definitely 
demonstrated that the academic theory could not 
be maintained and that Roman law obtained in 
the courts simply because it had been received in 
the custom of tribunals. If one thought philo- 
sophically, he said that it had the authority of 


“ E.g., the rules of limitation of estates at common law, de- 
rived logically from a theory as to abeyance of seisin. Challis, 
Law of Real Property, chap. 11. Compare the later rules al- 
lowing limitations which were not possible at common law to be 
made indirectly through uses. 


“Examples may be seen in*#he American common law as to 
corporations in comparison with the ideas of business men—see 
Machen, Do the Incorporation Laws Allow Sufficient Freedom to 
Industrial Enterprise?, Rep. Maryland Bar Assn., XIV, 78, 81-84, 
85, 87-89 (1909); People v. Shedd, 241 IIl. 155° (1909) ,—and in 
the common-law conception of partnership in comparison with 
the business man’s conception—see Brannan, The Separate Es- 
tates of Non-Bankrupt Partners, 20 Harv. Law Rev. 589, 593; 
Crane, The Uniform Partnership Act, 28 Harv. Law Rev. 762, 
765-766. See also Austin, Jurisprudence (Student’s edition) 
aoe iss Clark, Roman Private Law: Jurisprudence, I, 383, 407- 
408. 


22 LAW AND MORALS 


embodied reason.4%. It was the culmination of 
rational discovery and declaration of natural law. 
If one thought juristically, he said that it had 
the authority of long usage which, as the Roman 
texts themselves told us, stood legally upon the 
same plane with enacted rule.44 All that was not 
legislative in origin was called customary law. 
But during the reign of the legislative theory of 
Roman law the Germanic law in Western Europe 
had been contrasted therewith as customary law 
and, indeed, the written laws of the Germanic 
peoples were but declaratory of customs in a 
stage in which religious usage, social customs and 
traditional modes of decision make up an undif- 
ferentiated body of precepts of social control. 
As men thought with respect to these precepts, 
the basis of their authority was that long usage 
had proved them acceptable to God.4° Hence 
both elements of the common law could be called 
customary, and if one accepted legal dogmatic 
fictions at par, it seemed that the common law of 
all civilized countries at bottom rested upon cus- 
reigns fhronebane the werd. by ‘her tegen atte: at sear 


to reign by her authority.” D’Aguesseau (1668-1751) transl. by 
Kent, Commentaries, I, 516. 


SA Tests ty) Gg Ae ae LAS 1 Ay gt eae ks 


See Jenks, Law and Politics in the Middle Ages, 56-57; 
Heusler, Institutionen des Deutschen Privatrechts, I, 1. 


LAW AND MORALS 23 


toms of popular action. Customs grew; they 
were not made to order. Therefore law also 
grew; it was not made. The function of legis- 
lation was only to “restate,” to promulgate, to 
give a better ordered, systematically arranged 
statement, reconciling incidental inconsistencies. 
Behind these promulgations or restatements was 
the real law, evolving spontaneously through the 
inherent power of the idea. All attempts at con- 
scious interference with its spontaneous evolution 
were simply futile. History replaced ethical phi- 
losophy as the explanation of the universal ele- 
ment to which positive legal precepts were ap- 
proximating and by which they were to be judged. 

It has been remarked more than once that the © 
historical jurist merely gave us a new natural law 
on a new basis.*® He, too, found universal ideal 
principles to which positive law must conform. 
But they were not principles of morals. They 
were principles of customary action. They were 
not demonstrated by reason. They were discov- 
ered by historical study”* They did not admit of 
formulation in a perfect code through the activity 
of master-reasoners. They formulated them- 
selves in experience of affairs and in experience 


_“ E.g., Bekker, Recht des Besitzes, 3; Neukamp, Einleitung in 
eine Entwickelungsgeschichte des Rechts, 28-29. 


24 LAW AND MORALS 


of administering justice. The moral, as such, was 
quite out of the domain of judge and jurist.47 
When we consider the relation between law and 
morals. much depends upon what we mean by 
“law.” At one extreme the analytical jurist 
means the aggregate of authoritative legal pre- 
cepts that are applied by tribunals as such in a 
given time and place.*8 At the other extreme, the 
historical jurist is apt to think of the history of 
all social control as the history of law.4® Hence 
where the analytical jurist thinks of an authori- 
tative precept as established and enforced by some 
‘agency of politically organized society, the his- 
torical jurist thinks of a customary precept, with 


47“*The law was held to be something essentially out of the 
domain of the operation of conscious, voluntary human mind, 
since it was but the manifestation of the spirit of the people real- 
izing the reasonable for the time being. Hence the science of 
law shrunk to a purely theoretical working over of historical data, 
excluding all values. Speculation as to a law that ought to be, 
over and distinguished from a body of actual law, was rejected 
as unscientific dreaming. And as a consequence, the founder 
of the school denied to his age the vocation for legislation, with 
arguments which would hold for every time, if they were but 
sound.” Kantorowicz, Zur Lehre vom richtigen Recht, 8 (1909). 
See Pollock, Essays in Jurisprudence and Ethics, 25-26 (1882). 


48 “Now law or the law, taken indefinitely, is an abstract and 
collective term; which, when it means anything, can mean neither 
more nor less than the sum total of a number of individual laws 
taken together.’”?” Bentham, Principles of Morals and Legislation, 
324 (1789). See Austin, Jurisprudence, lect. I (1832); Hol- 
land, Jurisprudence, chaps. 2-3 (1880). 


49 Maine, Early History of Institutions, lect. 13 (1874); Vino- 
gradoff, Historical Jurisprudence, I, 157-159. ‘‘I should say that 
any rules of human conduct actually obtaining among any con- 
siderable number of human beings, in some manner connected 
or associated together by virtue of human sanctions, might not 
improperly, be called positive law.”’ Clark, Roman Private Law: 
Jurisprudence, I, 90. 


LAW AND MORALS 25 


an origin wholly independent of politically organ- 
ized society, recognized and given effect in a 
course of judicial action. The former sees chiefly 
the force and constraint behind legal rules. He 
conceives that the sanction of law is enforcement 
by the judicial and administrative organs of the 
state and that nothing which lacks that direct and 
immediate backing of organized force is law.5° 
The historical jurist, on the other hand, sees 
chiefly the social pressure behind legal rules. He 
finds sanction in habits of obedience, displeasure 
of one’s fellow men, public sentiment or opinion, 
or the social standard of justice.®4 

In truth the different schools of jurists in the 
last century were looking primarily at distinct 
elements of the complex aggregate that we call 
“law.”52 The analytical jurist thought exclus- 
ively of the body of established precepts whereby 
a definite legal result is attached to a definite 
state of facts. The historical jurist was likely to 
think exclusively of the body of traditional ideas 


50 Gray, Nature and Sources of the Law (2 ed.) 94-95; Hol- 
land, Jurisprudence, chap. 3; Anson, Law and Custom of the 
Constitution, I, 8; Salmond, Jurisprudence, § 5; Clark, Roman 
Private Law: Jurisprudence, I, 75 


51 Maine, International Law, lect. 2 (1888); Westlake, Inter- 
national Law, I, 7 (1910); Clark, Practical Jurisprudence, 134 
(1883); Lightwood, The Nature of Positive Law, 389 (1883); 
Carter, The Ideal and the Actual in Law, 10-11 (1890). 


52 See Pound, The Theory of Judicial Decision, 36 Harv. Law 
Rev. 641, 644-657. 


26 LAW AND MORALS 


as to how causes should be decided, and the tra- 
ditional technique of developing and applying 
those ideas, by which legal precepts are eked out, 
extended, restricted and adapted to the exigencies 
of life. The philosophical jurist looked chiefly, 
if not exclusively, at a third element, namely, a 
body of philosophical-political and ethical ideas 
as to the end of law and as to what legal precepts 
should be in view thereof, with reference to 
which, consciously or unconsciously, legal pre- 
cepts and traditional principles of decision and 
the traditional technique are continually being re- 
shaped and given new content and new applica- 
tion. The philosophical jurist has called this third 
element “natural law” and has given us a theory 
of all law on the basis thereof. The historical 
jurist has called the second element “custom” and 
has given us a theory of all law on that basis. 
The analytical jurist has sought to treat the sec- 
ond and third elements as but sources from which 
legal precepts are drawn or raw materials from 
which legal precepts are made, but which are 
themselves no part of the law, and so has given 
us a theory of law exclusively in terms of the 
first element. These different views, laying stress 
upon different elements in the whole mass of 
materials upon which judicial decision proceeds, 


LAW AND MORALS “af 


respond to different demands made upon juristic 
thought in different stages of legal development. 

Today the legal order is the most conspicuous 
and most effective form of social control. All 
other agencies of social control operate under the 
scrutiny, and in subordination to the exigencies, 
of the law. Religion, the internal discipline of 
the group of kindred or its analogues, and social 
customs, which were the efficient agencies of so- 
cial control in antiquity, have gradually yielded 
their leadership as regulative systems to the 
claims of politically organized society. But in 
the beginnings of legal development, in what we 
may call the pre-legal stage or the stage of prim- 
itive law, religion, law and morals are undiffer- 
entiated in a simpler social control that precedes 
the rise of the political organization at the ex- 
pense of kin organization and of religious organ- 
ization. As late as the fourth century before 
Christ, after the city-state had achieved a high 
degree of political development, the Greek word 
vou0s, which we transléte as “law,” was used in- 
discriminately, often by the same author, to mean 
traditional religious usage or observance, tradi- 
tional social custom, traditional moral ideas, law 
(or rather social control) in general, and a par- 


28 LAW AND MORALS 


ticular enacted legal precept.°2 We must re- 
member that the first legislation is but publication 
of received tradition. Hence the analytical line 
between social control through customs of popu- 
lar action, through precepts declaring those cus- 
toms, and through enacted rules, made uncon- 
sciously at first in the belief that they are but 
publications, then made consciously under a fic- 
tion of declaring custom, and at length made de- 
liberately as new rules—this line is long imper- 
ceptible and is only gradually admitted. In the 
pseudo-Platonic Minos, Socrates speaks of a 
gardener’s manual as the laws of gardening and 
of a cook book as the laws of cookery,°* since 
the settled customs and crystallized traditional 
experience and formulated precepts of gardeners 
and cooks seemed on exactly the same plane as 
the customs and crystallized experience and 
formulated precepts as to conduct in relations of 
man with man that made up what we now call 
the law. 

53 As the whole of social control: Plato, Hippias Major, 284; 
Plato, Protagoras, 337 D; Aristotle, Politics, 1287 A. As ethical 
custom: Pseudo-Plato, Minos, 513 D. Referring to funeral 
ceremonies required by religious custom: See Dareste, Les 
plaidoyers politiques de Démosthéne, II, 3, II, 20. As a tra- 
ditional or customary ethical principle: Aristotle, Politics, 1287 B. 
As a moral precept: See Dareste, Les plaidoyers politiques de 
Démosthéne, II, 329, 344 (cf. Ulpian in Inst. i, 1, 4, Dig. i, 1, 1, 
§ 3). Referring to conventions as opposed to “nature:’’ Democri- 
tus, quoted by Sextus Empiricus, Math. vii, 135; Plato, Gorgias, 


oa As a rule of law: Aristotle, Politics, 1286 A, 1287 A, 


54 316 C—317B. The whole argument turns on the undifferen- 
tiated multiplicity of meanings of vopuos, 


LAW AND MORALS 29 


We begin, then, with a condition of undiffer- 
entiated social control—as we should have said in 
the last century, a condition of undifferentiated 
religion, morals and law—in which law, as we 
now think of it, that is, social control through the 
force of politically organized society, is the least 
in scope and the least in efficacy of the three. 
When we first know the Roman law not only do 
fas (what accords with the will of the gods) and 
boni mores (what accords with the social customs 
of men) bear most of the burden of social con- 
trol, but their sanctions, the fear of the super- 
natural and the power of devotion of transgres- 
sors to the infernal gods, of sacrificial execution 
and of excommunication, and the kin or guild 
discipline on the basis of reprehending things 
that “are not done,” are much stronger than the 
relatively feeble enforcing machinery of the ius 
ciuile (that which accords with the custom or the 
declared will of the state). Such matters as good 
faith in transactions, keeping promises, perform- 
ing agreements, are left*to religion and morals 
rather than committed to the law, and when the 
law gradually takes them over they long retain 
the form given to them by religion. Thus it could 
be said that law and morals have a common 
origin but diverge in their development. 


30 LAW AND MORALS 


This divergence becomes marked when we pass 
to the next stage in the development of legal 
systems, the stage of the strict law. In this stage 
the state or politically organized society has defi- 
nitely prevailed, and law in the sense of the an- 
alytical jurist has been definitely set off from 
other agencies of social control. But legal pre- 
cepts in this stage are crude and rigid. The law 
is a system of remedies and its rules are chiefly 
procedural, defining in a hard and fast manner 
the cases in which tribunals will interfere and 
the way in which they will interfere. From the 
standpoint of the relation of law and morals, this 
is a stage of codified or crystallized custom which 
in time is outstripped by morality and does not 
possess sufficient power of growth to keep abreast. 
Ancient codes and bodies of formulated custom- 
ary law, which are the basis of the legal system 
in the strict law, are made up of definite, precise, 
detailed provisions for simple, exact states of 
fact. In this stage reliance is had upon rule and 
form to insure certainty and thus to maintain the 
general security. There are no generalizations 
and the premises are not broad enough to allow 
of growth by interpretation outside of narrow 
limits. For example, interpretation of the Twelve 
Tables could not provide a better order of in- 


LAW AND MORALS 31 


heritance, based on blood relationship, when the 
order of the strict law, based on the old house- 
hold organization and ancestor-worship, ceased to 
accord with the moral ideas of the time. No de- 
velopment of common-law property ideas could 
give effect to the purely moral obligation of the 
trustee. No development of common-law writs, 
as they took fixed form after the thirteenth cen- 
tury, could give equitable relief for fraud. And 
so at the end of this stage the law had come to 
be highly unmoral. It regarded nothing but con- 
formity or want of conformity to its forms and 
rules. The moral aspect of situations, the moral 
aspects of conduct were wholly indifferent. Both 
in Roman law and in our own law the ideas of 
this stage gave a direction to thinking about law 
which persisted into the succeeding stages. The 
old treatises on the ius ciuile, or strict law of the 
Roman city, and the writings of Sir Edward 
Coke in our law,°>5 each coming at the end of a 

55 “Our student shall observe, that the knowledge of the law 
is like a deepe well, out of which each man draweth according to 
the strength of his understanditeg. He that reacheth deepest, he 
seeth the amiable and admirable secrets of the law, wherein I 
assure you the sages of the law in former times (whereof sir Wil- 
liam Herle was a principall one) have had the deepest reach. And 
as the bucket in the depth is easily drawn to the uppermost part 
of the water, (for nullum elementum in suo proprio loco est 
grave) but take it from the water, it cannot be drawne up but 
with great difficultie; so albeit beginnings of this study seem 
difficult, yet when the professor of the law can dive into the 
depth, it is delightfull easie and without any heavy burthen so 


long as he keepe himselfe in his own proper element.” Co. Litt. 
71 a. 


32 LAW AND MORALS 


stage of the strict law and summing up the 
achievernents of that stage as the basis for a new 
start, imposed something of the spirit of the strict 
law upon each system for times to come, and are 
in large part responsible for a certain conviction 
that the positive law is of necessity unmoral or 
must inevitably ignore moral considerations—a 
conviction which is marked in the legal science of 
the last century. 

In a third stage of legal development there is a 
large infusion into the law of purely moral ideas 
from without. This is a stage of growth, and 
growth in law takes place chiefly by assimilation 
and adaptation of materials drawn from other 
legal systems or from outside of the law. At 
Rome in the classical period Greek ethical phi- 
losophy was drawn upon. In England in the rise 
of the court of chancery and development of 
equity, ethical ideas from the casuist literature 





“For reason is the life of the law, nay the common law itselfe 
is nothing else but reason; which is to be understood of an 
artificiall perfection of reason, gotten by long study, observation, 
and experience, and not of every man’s naturall reason; for, 
Nemo nascitur artifex.”’ Co. Litt. 97 b. 

“Then the King said that he thought the law was founded upon 
reason, and that he and others had reason as well as the judges: 
to which it was answered by me that true it was, that God had 
endowed his Majesty with excellent science, and great endow- 
ments of nature; but his Majesty was not learned in the laws of 
his realm of England, and causes which concern the life, or in- 
heritance, or goods or fortunes of his subjects, are not to be de- 
cided by natural reason, but by the artificial reason and judg- 
ment of law, which law is an art which requires long study and 
experience before that a man can attain to the cognizance of it.’ 
Prohibitions del Roy, 12 Rep. 63, 64. 


LAW AND MORALS Wie 


of the sixteenth century,®® and the general notions 
of right and wrong held by chancellors who were 
not common-law lawyers, were made liberalizing 
agencies. In Continental Europe of the seven- 
teenth and eighteenth centuries the philosophical 
ideas of juristic writers upon the law of nature 
were used in the same way. -Thus moral duty 
was turned into legal duty and put in the fore- 
ground in place of legal remedy. Reason was re- 
lied upon rather than strict rule. The individual 
human being, as the moral unit, became the legal 
unit. It was conceived that the moral principle, 
simply as such and for that reason, was to be also 
a legal rule. In all legal systems the distinguish- 
ing characteristics of this stage are the feeling that 
the legal must be made to coincide with the moral 
at every point and the consequent progression of 
moral ideas into legal ideas, and from what had 
been but morals without legal sanction into effec- 
tive legal institutions. The science of law begins 
in this stage. Consequently as he looked back at 
it the historical jurist could say that morals were 
potential law. That which started as a moral 
principle became an equitable principle and then 
Ue Rig, soaks Doctor and Student, Dial. II, chap. 24 (1523); 
Day v. Slaughter, Prec. Ch. 16 (1690); Fursaker v. Robinson, 


tins 475 (1717); Chapman v. Gibson, 3 Bro. C. C. 229 
91). 


34 LAW AND MORALS 


a rule of law.57 What had seemed to the philo- 
sophical jurist of the law-of-nature school to 
show the identity of the moral and the legal, 
seemed to the historical jurist to show that they 
were distinct. But the historical jurist wrote 
from the standpoint of another stage of legal de- 
velopment. 

It is not too much to say that the attempt to 
make law and morals identical by covering the 
whole field of morals with legal precepts, and by 
conforming existing precepts to the requirements 
of a reasoned system of morals, made the modern 
law. When the analytical jurist analyzes the pre- 
cepts and doctrines and institutions of developed 
law and, in the apt language of Mr. Justice 
Holmes, washes the results “in cynical acid,’’58 
and thus finds fundamental legal conceptions of 
right and duty and power and liberty or privilege 
devoid of any moral content, he much deceives 
himself. The legal right and legal duty of nine- 
teenth-century law are but the natural right and 
moral duty of philosophical jurisprudence of the 

57 Compare: “Law and equity are in continual progression; 
Isvery “new: atulccxthealvaey iaterpolteialt iar ee eta 
converted into an old rule. A great part of what is now strict 
law was formerly considered as equity; and the equitable de- 
cisions of this age will unavoidably be ranked under the strict 


law of the next.” Millar, Historical View of the English Gov- 
ernment, II, 358 (1812). 


58 Collected Papers, 174. 


LAW AND MORALS 35 


two preceding centuries taken over and given 
more definite content in the maturity of law. 
Jurists began by assuming that if they were moral, 
and to the extent that they were moral, they were 
therefore legal. Then the analytical jurist as- 
suming that he could examine them as purely 
legal institutions, reached his cynical conclusion 
and justified it by deduction from his hypothesis. 
Such phenomena as the doctrine that performance 
of a moral obligation that cannot be coerced leg- 
ally will stand legally as performance of a duty 
and so is not a “voluntary” disposition of which 
legal creditors may complain ;5® or that where a 
moral duty is performed by mistake, although it 
was not legally enforceable, the moral claim of 
the recipient to hold what he has received will 
stand as “consideration ;’’6° or that a moral claim 
to money may in effect be set off in equity against 
a legal debt, although the claim is not directly en- 
forceable at law, on the ground that the legal 
creditor who seeks equity “must do equity’®!— 
such examples, and a score of others that might 
be advanced, show that the legal system itself did 
not wash the whole content of “right” and “duty” 


59 E.g., Cottrell v. Snaith, 63 Ia. 181; Holden v. Barnes, 140 
Pa. St. 63; Martin v. Remington, 100 Wis. 540. 


6 Farmer v. Arundel, 2 W. Bl. 824. 
61 Hemphill v. Moody, 64 Ala. 468. 


36 LAW AND MORALS 


with cynical acid, whatever jurists may have tried 
to do with the abstract conceptions. But in Eng- 
land at the end of the eighteenth century juristic 
creative energy was spent. Lord Mansfield was 
succeeded by Lord Kenyon. Lord Eldon came 
presently to “crystallize” equity. A generation 
later the creative energy that was needed for the 
reception of the common law in America and 
the reshapings and adaptations and assimilations 
from the civil law, from the Continental com- 
mercial law, and from colonial custom, which that 
process involved—that creative energy was spent 
also. Instead of using “what ought to be” to 
demonstrate “what is,” jurists began to consider 
“what is’ to be an authentic pronouncement on 
natural law. Much of the disrepute of natural 
law at present comes from thinking of it in terms 
of the identification of an ideal form of familiar 
legal institutions with the postulated eternal im- 
mutable law of nature, which obtained at the end 
of the eighteenth century, rather than in terms of 
the classical creative natural law of the seven- 
teenth century. Historical jurisprudence put a 
historical foundation under the formet way of 
thinking. 

Throughout the world the latter part of the 
nineteenth century is a period of maturity of law. 


LAW AND MORALS 37 


The moral institutions and doctrines taken into 
the legal system during the period of growth be- 
come legalized. We get a “system” of equity. 
Equitable doctrines, such, for example, as equit- 
able estoppel, acquire legal shells. The English 
Chancery Division tells us that it is “not a court 
of conscience.’’®? The action for money had and 
received, which Lord Mansfield had made into a 
bill in equity at law, comes to be administered on 
mechanical principles. More than one equitable 
conception is worked out into hard and fast rules 
which in their technical operations fall upon just 
and unjust alike. The administrative judicial 
methods of the seventeenth and eighteenth cen- 
turies give way to judicial methods which ignore 
results and seek abstract uniformity, formal 
predicability and outward appearance of certainty, 
at any cost. Thus a certain opposition between 
law and morals develops once more, and the his- 
torical jurist, writing with that phenomenon be- 
fore his eyes, conceives that the very circumstance 
that this opposition has developed in the history 
of law demonstrates its validity, since it shows the 
course of realization of the idea. 

a Buckley, J., in In re Telescriptor Syndicate [1903] 2 Ch. 


174, 195-196. 
6&8 E.g., in Baylis v. Bishop of London [1913] 1 Ch. 127. 


38 - LAW AND MORALS 


On such grounds the nineteenth-century jurist 
is zealous to point out that a legal right is not 
necessarily right—i.e., that it may or may not be 
accordant with general feelings as to what ought 
to be.64 He is eager to show that one may have a 
legal claim that is morally wrong and to refute 
the fallacious jingle that a legal right is not a 
right if it is not right.6° It may not be denied that 
the identification of morals and law, the assump- 
tion that propositions as to what ought to be 
might be asserted as authoritative legal precepts 
on that basis alone, gave rise to confusions that 
were injurious to clear thinking in the maturity 
of law. Yet the sharp line between making or 
finding the law and applying the law, which the 


64 “Tf it is a question of legal right, all depends upon the 
readiness of the State to exert its force on his behalf. It is 
hence obvious that a moral and a legal right are so far from 
being identical that they may easily be opposed to one another.” 
Holland, Jurisprudence (12 ed.) 87. ‘Laws, as Austin has 
shown, must be legally binding and yet a law may be unjust. 
Resistance to authority cannot be a legal right, and yet it may be 
a virtue. But these are only examples. Into whatever discus- 
sions the words ‘right’ and ‘justice’ enter we are on the brink 
of a confusion from which a careful observance of the distinction 
between law and morals can alone save us. Austin has shown 
not only what law is but what it is not. He has determined ac- 
curately the boundaries of its province. The domain he assigns 
to it may be small, but it is indisputable. He has admitted that 
the law itself may be immoral, in which case it is our moral duty 
to disobey it; but it is nevertheless law.” Markby, Elements of 
Law (4 ed.) § 12. See Gray, Nature and Sources of the Law 
(2 ed.) 14; Pollock, Essays in Jurisprudence and Ethics, 25-26 
(1882). 

6 ‘An act contrary to right (droit) cannot give rise to a right 


(droit) even by the omnipotence of a law (Jot).” Duguit, Traité 
de droit constitutionnel, (2 ed.) I, 157. 


LAW AND MORALS 39 


analytical jurist drew and the historical jurist ac- 
cepted, cannot be maintained. Except for routine 
cases, the analytical jurist grossly underestimated 
the role of morals in everyday decision. Morals 
do more than serve as a last resort when all else 
fails. If, as Gray asserts, moral ideas and statu- 
tory provisions are but raw materials from which 
courts make the law by judicial decision,®® using 
the former when case-law and statute are want- 
ing, the argument when carried out shows that the 
judicial decisions of the past are but raw mate- 
rials for the judicial decisions of the moment. 
The outcome of the argument is that courts de- 
cide without law on the basis of sources of law. 
It proves too much. If the term “‘law”’ is to have 
any useful meaning it must include all the im- 
mediate materials of judicial decision. 

Judges and lawyers felt this even at the height 
of the reign of nineteenth-century theory. Thus 
Judge Dillon, after stating the analytical and his- 
torical doctrine of the last century, to which from 
a scientific juristic position he felt bound to as- 
sent, could not but see that his experience as 
counsel and as judge belied it. He says: “If un- 
blamed I may advert to my own experience, I al- 
ways felt in the exercise of the judicial office 


66 Nature and Sources of the Law (2 ed.) 84, 170. 


40 LAW AND MORALS 


irresistibly drawn to the intrinsic justice of the 
case, with the inclination, and if possible the de- 
termination, to rest the judgment upon the very 
right of the matter. In the practice of the pro- 
fession I always feel an abiding confidence that 
if my case is morally right and just it will suc- 
ceed, whatever technical difficulties may stand in 
the way; and the result usually justifies the confi- 
dence.’”’6* Theories that ignore such facts of the 
administration of justice are as much “in the air” 
as any philosophical theory ever was. 

Sound thinking requires us to perceive that 
moral propositions do not become authoritatively 
established legal precepts whenever a jurist suc- 
ceeds in demonstrating to his own satisfaction 
that they are ethically well taken. On the other 
hand, the conclusion of Historicus does not fol- 
low. He says: “It is right that a man should 
keep all his promises, but the law only compels 
him to keep those which are made for valuable 
consideration ; yet the law is not therefore unjust ; 
it only shows that the provinces of law and mor- 
ality are not co-extensive.’”°8 They are not neces- 
sarily co-extensive. Many things are involved 


°7 Laws and Jurisprudence of England and America, 17 (1894). 
See Fry, Memoir of Sir Edward Fry, 67 

68 Letters by Historicus [Sir William Vernon Harcourt] on 
Some Questions of International Law, 76 (1863). 


LAW AND MORALS 41 


in determining how far the legal and the moral 
may be or should be made to coincide in a par- 
ticular situation. But a legal rule can not stand 
simply on the basis that it is authoritatively es- 
tablished and is unmoral. The answer to His- 
toricus is that for a generation the courts have 
been quietly loading his typical unmoral legal rule 
with exceptions and that judicial endeavor to at- 
tain justice through law is continually devising 
new means of evading it.69 The circumstance 
that “a right” and “law” and abstract “right” in 
the ethical sense were all expressed in Latin by 
the same word, and that “a right” and abstract 
“right” in the ethical sense are expressed by the 
same word in English, has had a powerful influ- 
ence in the history of law in bringing legal rights 
and legal rules into accord with right. It was a 
service to make us think out our terminology 
with more discrimination. But we must not take 
our logical discriminations for ends. Legal pre- 
cepts sometimes are, and perhaps sometimes must 
be, at variance with the requirements of morals. 
Yet such a condition is not something of which 
the jurist is to be proud. It is not a virtue in the 
law to have it so. Nor are such conditions re- 
quired, in a certain number, in order to demon- 


69 See Pound, Introduction to the Philosophy of Law, 271-273. 


42 LAW AND MORALS 


strate that law is one thing and morals another. 
So far as such things are more than historical 
anomalies that ought to be pruned away, they 
arise from inherent practical limitations upon 
effective legal action, which make it impossible or 
inexpedient in a wise social engineering to at- 
tempt to secure certain claims or enforce certain 
duties to the extent that might be desirable from 
a purely ethical standpoint. 


I] 


DEEL BAIN AY LC ATMA TE Wi 


Analytical jurisprudence broke with philosophy 
and with ethics completely.1 The historical school 
took over, from what may well be called meta- 
physical jurisprudence, the idealistic interpretation 
of legal history, and accepted the metaphysical 
juristic conception of the end of law and the 
metaphysical identification of the idea which was 
unfolding or realizing in legal history. The ana- 
lytical jurists, on the other hand, regarded the 


1“With the goodness or badness of laws as tried by the test 
of utility (or by any of the various tests which divide the 
opinions of mankind) it has no immediate concern.” Austin, 
Jurisprudence, (3 ed.) 1107. 

“The great gain in its fundamental conceptions which juris- 
prudence made during the last century was the recognition of 
the truth that the law of a state or other organized body is not 
an ideal, but something which actually exists. It is not that 
which is in accordance with religion, or nature, or morality; it is 
not that which ought to be, but that which is.” Gray, The 
Nature and Sources of the Law, § 213 (1909), (2 ed.) 94. 

“What, however, Austin’s predecessors do not appear to me to 
have fully comprehended, at least not with that sure and firm 
grasp which proceeds from a full conviction, is the distinction 
between law and morals. We find, for example, that Bentham, 
when drawing the line between jurisprudence and ethics, classes 
legislation under jurisprudence, whereas, as Austin has shown, 
it clearly belongs to ethics. Austin, by establishing the dis- 
tinction between law and morals . . . laid the foundation 
for a science of law.’”” Markby, Elements of Law (4 ed.) § 12 
(1889). The same proposition, stated with less assurance, may 
be found in the first edition (1871) 5-6. 

See also Salmond’s comments, First Principles of Juris- 
prudence, 36. 

As to the relation of analytical jurisprudence to utilitarian 
Sitio Pp Maine, Early History of Institutions (American ed.) 


44 LAW AND MORALS 


science of law as wholly self-sufficient.2 Instead 
of seeking to deduce a system from the nature of 
man, or to deduce an ideal body of principles 
from some assumed or metaphysically demon- 
strated first principle, they sought to take legal 
precepts exactly as they were—as one of them put 
it, to take the “pure fact of law’’—to analyze 
actually existing legal institutions, and to obtain 
in that way the materials for a universal science 
of law. In practice they by no means succeeded 
in confining themselves to “the pure fact of law.” 
It has been charged with much reason that both 
analytical and historical jurists set up systems of 
natural law of their own. That is, each set up 
ideal patterns to which all law should conform, 
and by which all legal precepts were to be judged. 
But it was not an ethical pattern, as it had been 
during the vogue of natural law. The ideal pat- 
tern of the analytical jurist was one of a logically 
consistent and logically interdependent system of 


2 Austin, The Province of Jurisprudence Determined, 1 (1832). 
“Tt has been truly said that he who could perfectly classify the 
law would have a perfect knowledge of the law.’’ Gray, Nature 
and Sources of the Law, § 15, (2 ed.) 3. 

Amos, Systematic View of the Science of Jurisprudence, 19 
(1872). 

*Brunner in Holtzendorff, Enzyklopidie der Rechtswissen- 
schaft (5 ed.) 346-347; Kohler, Rechtsphilosophie und Universal- 
rechtsgeschichte, in Holtzendorff Enzyklopddie der Rechtswissen- 
schaft (6 ed.) I, 2. 


LAW AND MORALS 45 


legal precepts, completely covering the whole field 
of human relations, so far as they could become > 
the subject of controversy, made at one stroke 
upon a logical plan to which it conformed in every 
detail. One need not say that this was quite as 
ideal and quite as far from “pure fact” as the 
older conception of a rational body of precepts, 
covering completely the field of morals and coin- 
ciding wholly with moral precepts in its details. 
Where the school of natural law had found the 
necessary fundamenta of law, the universal prin- 
ciples on which all law must rest, through phi- 
losophy, the analytical jurist sought to find them 
through analysis of the rules and doctrines and 
institutions of English law, of Roman law, and 
of the modern Roman law.® ie 
Analytical jurisprudence assumed that “law” 
was an aggregate of rules of law, and took for 
the type of a rule of law, in the earlier stage of 
the school an English statute,® in the later stage 
an Anglo-American common-law rule of prop- 
The BTEC gy lp general theory of law drawn almost entirely from 
Roman and English law.” Bergbohm, Jurisprudenz und Rechts- 
philosophie, 333 note (1892). “I mean, then, by general juris- 
prudence, the science concerned with the exposition of the 
principles, notions, and distinctions which are common to sys-. 
tems of law; understanding by systems of law, the ampler and 
maturer systems which, by reason of their amplitude and maturity, 


are preéminently pregnant with instruction.” Austin, Juris- 
prudence, (3 ed.) II, 1108. ; 


*E.g., see Bentham, Principles of Morals and Legislation 
330-332. 


46 LAW AND MORALS 


erty or rule of commercial law.7 Hence it ex- 
cluded ‘from consideration much which, if not 
“pure fact of law,” was at least significant fact of 
the legal order and controlling fact in the admin- 
istration of justice. Also the analytical view of the 
relation of law and morals was influenced strongly 
by the dogma of separation of powers and conse- 
quent assumption that the making of legal pre- 
cepts, on the one hand, and the interpretation and 
application of them, on the other, could be kept 
apart by an exact analytically drawn line and 
could be committed exclusively to two distinct 
organs of political society.§ 

Assuming an exact logically defined separation 
of powers, the analytical jurist contended that 


7 Austin was a chancery barrister at a time when English 
equity was chiefly taken up with the enforcement of family 
settlements and trusts, and the equity lawyer was of necessity 
an expert in the law of real property. Hence he thought of 
law largely in terms of the rules of the law of property. This 
attitude has colored Anglo-American analytical jurisprudence 
ever since. Professor Gray, our leading American writer from 
the analytical standpoint, was above all a real property lawyer. 

Analytical definitions of law as an aggregate of rules, and of a 
law as a rule, are significant. Holland, Jurisprudence (12 ed.) 
42; Markby, Elements of Law, § 7; Anson, Law and Custom of 
the Constitution, I, 8; Gray, The Nature and Sources of the 
Law (2 ed.) 95. 

As to the types of legal precept which this mode of thinking 
ignores, see Pound, The Administrative Application of Legal 
Standards, 44 Rep. Am. Bar Ass’n, 445, 454-458; The Theory of 
Judicial Decision, 36 Harv. Law Rev. 641, 644-646; Juristic 
Science and Law, 31 Harv. Law Rev. 1047, 1060-1062. 


8 This is apparent beneath the surface in analytical jurispru- 
dence even though the analytical jurists insist rightly that much 
low is made by judicial decision. See Austin, Province of Juris- 
prudence Determined, 28; Holland, Jurisprudence, (12 ed.) 78; 
Markby, Elements of Law, (1 ed.) § 43. 


LAW AND MORALS 47 


law and morals were distinct and unrelated and 
that he was concerned only with law.® If he saw 
that their spheres came in contact or even over- 
lapped in practice, he assumed that it was because 
while in a theoretically fully developed legal sys- 
tem judicial and legislative functions are wholly 
separated, this separation has not yet been real- 
ized to its full extent in practice. He would say: 
So far as and where this separation is still incom- 
plete there is still confusion of or overlapping be- 
tween law and morals. From his standpoint 
there were four such points of contact, namely, 
in judicial lawmaking, in interpretation of legal 
precepts, in the application of law, especially in 
the application of legal standards, and in judicial 
discretion. At these four points he conceived 
there was a border line where the separation of 
powers was not complete. So far as the separa- 
tion of judicial and legislative powers was com- 
plete, law was for courts, morals were for legis- 
lators ¥4 legal precepts were for jurisprudence, 
moral principles were for ethics. But so far as_ 
the separation was not yet complete and in what 
Faia deen. Jurisprudence (3 ed.) II, 1107; Gray, Nature and 
Sources of the Law (1 ed.) §8§ 1, 213, (2 ed.) 94, 139n. ‘‘The 
Fi ae Berti the face lot ova, teanaideredl ue auch, 
and neither as good nor bad) of all other facts whatsoever.” 


eeey Systematic View of the Science of Jurisprudence, 18 


48 LAW AND MORALS 


the analytical jurist took to be the continually 
narrowing field in which judges must make as 
well as administer legal precepts, morality per- 
force must stand for the law which should but 
did not exist as the rule of judicial action.?° 
Thus two false assumptions are at the basis of 
the analytical doctrine. In the first place, the at- 
tempt to confine governmental action to an ana- 
lytical scheme of threefold division of powers has 
simply failed. As actually drawn in American 
constitutional law today, the lines are more and 
more historical; and many commonwealths have 
expressly abrogated them in order to give powers 
of efficient action to their public service commis- 
sions. Everywhere experience of the impossibil- 
ity of the thing has driven courts to recognize 
that sharp analytical lines cannot be drawn. 
Specialization of function for typical forms of 
governmental action, with a drawing of the lines 
on grounds of expediency in the large no man’s 
land that surrounds each type, has proved the 


10Thus, Austin argued for a codification which should be ‘a 


complete and exclusive body of statute law.” Jurisprudence 
(3 ed.) II, 682. He held that the “incognoscibility” of “judiciary 
law’? was due to the legislator’s negligence. Id. 676. Untii such; 
a code, the judges, in the absence of legislation, “impress rules 
of positive morality with the character of law through decision 
+! etre Id. I, 37. See also Markby, Elements of Law (6 ed.) 


As to the points of contact, see Austin, Jurisprudence, lect. 
37, 38, and note on interpretation (3 ed.) II, 1023 ff.; Amos, 
Sctence of Law, 34-42. 


LAW AND MORALS 49 


most that could be achieved.t! Again, jurists 
have had to give over the ideal of a complete 
body of legal precepts which would require no 
supplementing by judicial action. It was an 
eighteenth-century idea that a body of enacted 
law might be made so complete and so perfect 
that the judge would have only to select the exact 
precept made in advance for the case in hand, 


11 Federalist, no. 47. “‘The classification cannot be very exact 
and there are many officers whose duties cannot properly, or at 
least exclusively, be arranged under any of these heads.’’ Cooley, 
Torts, 375. “The assumption that governmental power is divis- 
ible into mutually exclusive kinds of action has proved inappli- 
cable to the concrete problems of government. No classification 
of powers, based upon the nature of the body to which any kind 
of action is commonly delegated, can furnish mutually exclusive 
kinds of power, capable of differentiation by reason of their in- 
trinsic qualities.” Powell, Separation of Powers, 27 Political 
Science Quarterly, 215, 237. See 2 Willoughby, Constitutional 
Law of the United States, §§ 742-743. 

For judicial pronouncements, see Murray v. Hoboken Land & 
Improvement Co., 18 How. 274, 284; Maynard v. Hill, 125 U. S. 
190, 204-209; State v. Harmon, 31 Ohio St. 250, 258. In Brown 
v. Turner, 70 N. C. 93, 102, Bynum, J., said: ‘‘While it is true 
that ‘the executive, legislative, and supreme judicial powers of 
the government ought to be forever separate and distinct,’ it is 
also true that the science of government is a practical one; 
therefore, while each should firmly maintain the essential powers 
belonging to it, it cannot be forgotten that the three co-ordinate 
parts constitute one brotherhood, whose common trust requires a 
mutual toleration of the occupancy of what seems to be ‘a com- 
mon because of vicinage’ bordering the domains of each.” 

For the separation of powers in practical application in recent 
decision, compare Intermountain Rate Cases, 234 U. S. 476 with 
the same case below, 191 Fed. 856. Of this decision Taft, C. J., 
says: ‘“‘The Interstate Commerce Commission was authorized to 
‘exercise powers the conferring of which by Congress would have 
been, perhaps, thought in the earlier years of the Republic ta 
violate the rule that no legislative power can be delegated. But 
the inevitable progress and exigencies of government and the 
utter inability of Congress to give the time and attention indis- 
pensable to the exercise of these powers in detail, forced the 
modification of the rule.” 257 U. S., xxv-xxvi. 


50 LAW AND MORALS 


and then mechanically apply it.12 Such an idea 
is to be seen occasionally today, when some poli- 
tician urges a measure of legislation which shall 
define everything exactly a priori, and leave noth- 
ing to judges and lawyers beyond ascertainment 
of the facts and a logical cramming of them into 
the pre-appointed statutory pigeonholes. But this 
ideal also has failed us in practice. Today, so 
far as any jurist believes in the possibility of a 
complete system leaving nothing to judicial mak- 
ing as distinguished from judicial finding, he ex- 
pects to realize it only through a complete logical 
system of fundamental analytical propositions or 
historical principles, in which the solution of 
every particular controversy is logically implicit 
and from which a rule of decision for every case 
may be deduced by a mechanical logical pro- 
cess, 18 

Granting, however, that the two assumptions 
on which the analytical divorce of jurisprudence 
from ethics proceeds are not maintainable, we do 
not dispose entirely of the contention of the ana- 
lytical school. For although we admit that legis- 
lator and judge each make and shape and develop 


12 F.g., see the preface to the Code of Frederick the Great, § 
28 (English transl The Frederician Code, I. pp. xxxviii-xl). 
Compare Sir Samuel Romilly on Bentham’s Writings on Codifi- 
cation, 29 Edinburgh Review, 224. 


18 This proposition is often stated in terms of a metaphysical 
natural law. E.g., Bishop, Non-Contract Law, §§ 84-88. 


LAW AND MORALS 51 


and extend or restrict legal precepts, there is a 
difference of the first moment between legislative 
lawmaking and judicial lawmaking. The legisla- 
tive lawmaker is laying down a rule for the fu- 
ture.‘ Hence the general security does not re- 
quire him to proceed on predetermined premises 
or along predetermined lines. He may take his 
premises from whencesoever his wisdom dictates 
and proceed along the lines that seem best to him. 
On the other hand, the judicial lawmaker is not 
merely making a rule for the future. He is lay- 
ing down a legal precept which will apply to the 
transactions of the past as well as to the future 
and he is doing so immediately with reference to 
a controversy arising in the past.45 Hence the 
social interest in the general security requires that 


4 He may, unless constitutions forbid, law down rules by which 
the past is to be judged. But such legislation is universally re- 
probated and has been forbidden in formulations of fundamental 
law from the Twelve Tables to modern constitutions. The 
French Civil Code, art. 2, provides: “The enacted rule only 
makes dispositions for the future; it has no retroactive effect.” 
Baudry-Lacantinerie says of this: ‘In a well organized society 
individuals ought not to be exposed to having their condition or 
fortune compromised by a change of legislation. There must be 
some security in transactions; but there is none if laws may 
operate retroactively, for the right I have acquired today in con- 
formity to the provisions of the existing law may be taken from 
me tomorrow by a law which I could not have taken into account 
since it was impossible to foresee it.” Précis de droit civil (11 ed.) 
I, § 45. See XII Tab. ix, 1 (Bruns, Fontes Iuris Romani Antiqui 
(6 ed.) I, 34); Clark, Australian Constitutional Law, 28 ff.; 
ren Brazil, arts. 1L5; 791; Dodd, Modern Constitutions, Teese 

6 

% “Tt must be observed that a judicial decision primae im- 
pressionis, or a judgment by which a new point of law is for the 


first time decided, is always an ex post facto law.” Austin, 
Jurisprudence (3 ed.) Tue. 


52 LAW AND MORALS 


he should not have the same freedom as the legis- 
lative lawmaker. It requires that instead of find- 
ing his premises or his materials of decision 
where he will or where expediency appears to 
him to dictate, he find them in the legal system or 
by a process recognized by the legal system. It 
requires that instead of proceeding along the lines 
that seem best to him, he proceed along lines 
which the legal system prescribes or at least 
recognizes. 

- Thus the proposition that a judicial decision is 
only evidence of the law, the doctrine that judges 
always find the law and never make it, are not 
without an important purpose.’ If they are 
dogmatic fictions, they do more than enable us to 
arrange the phenomena of the administration of 


16 “Story, J., probably knew as well as John Austin that judges 
make law. But he probably knew better than John Austin the 
legal and constitutional restraints imposed on judges in the United 
States when engaged in the process of making law. The legis- 
lative process of making law and the judicial process of making 
law are, of course, widely different. Both are subject to like con- 
stitutional and legal restraints, but there are other and different 
constitutional and legal restraints peculiar to the judicial process, 
and especially peculiar to it in the United States. No judge in 
England or in the United States ever did need to be told, I think, 
that he has power to make law, but many judges in England 
and in the United States have needed to be reminded from time 
to time, vt et armis, of the constitutional and legal restraints 
binding upon them, when engaged in the judicial process of 
making law; and few, indeed, have been the judges, especially 
in the United States, who have shown a sound understanding as 
to when those restraints are rigid, and when they are elastic and 
flexible. When you say judges only declare pre-existing law, and 
do not make new law, you emphasize those restraints and keep 
them fresh in the memory better than when you say judges 
ae yi Schofield, Essays on Constitutional Law and Equity, 
’ -4 e 


LAW AND MORALS 53 


justice in a convenient, logically consistent 
scheme. They grow out of a sound instinct of 
judges and lawyers for maintaining a paramount 
social interest. They serve to safeguard the so- 
cial interest in the general security by requiring 
the grounds of judicial decision to be as definite 
as is compatible with the attainment of justice in 
results. They serve to make judicial action pre- 
dicable so far as may be. They serve to hold 
down the personality of the magistrate. They 
serve to constrain him to look at causes objec- 
tively and try them by reasoned development of 
legal materials which had taken shape prior to 
and independent of the cause in hand. Hence 
where rules are laid down for the future only, 
the lawmaker is given entire freedom, subject in 
America to a few reservations in bills of rights. 
Where, as in judicial lawmaking, rules are laid 
down for past as well as for future situations, the 
lawmaker is held down to traditional premises or 
traditional legal materials and to traditional lines 
and modes of development, to the end that those 
who know the tradition may be able within rea- 
sonable limits to forecast his action. | 

Ideals are required not merely for legislative - 
but quite as much for judicial making or finding 
or shaping of legal precepts and for judicial ap- 
plication of legal precepts. Yet the reviving natu- 


54 LAW AND MORALS 


ral law of today must recognize the limitations 
imposed upon judicial creative activity, and must 
not seek to make the judge as free to pursue his 
own ideals in his own way as is the legislator. 
This can not be urged too strongly upon lay 
critics of the courts. They overlook as a rule the 
important difference between the process of leg- 
islative lawmaking and the process of incidental 
selection of legal materials and giving them shape 
as legal precepts, which is involved in not a little 
of judicial decision. The latter may be called 
judicial lawmaking without any reflection upon 
the courts. The social interest in the general se- 
curity requires us to maintain such a distinction. 

A second point of contact between law and 
morals is to be found in interpretation.1* Inter- 
pretation has been thought of as including the pro- 
cess of finding or making rules for new cases, or 
reshaping them for unusual cases, which has just 
‘been considered. That form of so-called inter- 
pretation, so called by a dogmatic fiction, because 
in analytical theory the law is complete and all 
cases are at least covered by the logical implica- 
(oid Blacketone! Commentaries, 85-91; Austin, Jurisprudence 
(3 ed.) 1023-1036; Clark, Practical Jurisprudence, 230-244; 
Pound, Spurious Interpretation, 7 Columbia Law Rev. 379; Gray, 
Nature and Sources of the Law, §§ 370-399, 2 ed. 170-189; Geny, 
Méthode d’interprétation (2 ed.) I, §§ 92-108, II, $§ 177-187; 
Stammler, Theorie der Rechtswissenschaft, 558-652; Heck, 


Gesetzesauslegung und Interessenjurisprudenz, §§ 1-16; W. Jel- 
linek, ‘Gesetz, Gesetzesanwendung und Zweckmdassigkeitserwagung. 


LAW AND MORALS 55 


tions of pre-existing rules or the logical content 
of legal principles, was set off by Austin under 
the name of “spurious interpretation.”’!8 Here - 
the contact between law and morals is obvious, 
since the process is within limits one of legisla- 
tion. But in what Austin called “genuine inter- 
pretation,” the search for the actual meaning of 
those who prescribed a rule admittedly governing 
the case in hand, the final criterion, when literal 
meaning and context fail to yield a satisfactory 
construction, is found in the “intrinsic merit’’ of 
the various possible meanings.19 The judge or 
jurist assumes that the lawmaker intended to pre- 
scribe a just rule. He assumes that the law- 
maker’s ideas as to what is just and his own ideas 
thereof are in substantial accord ; he assumes that 
each holds substantially to the same ideal pattern 
of law or ideal picture of society and of the end 
of law as determined thereby. However much 
the analytical theory of “genuine interpretation” 
may purport to exclude the moral ideas of the 
judge, and to insure a wholly mechanical logical 
"38 Jurisprudence (3 ed.) 596-597, 650-651, 1025-1030; Clark, 


Practical Jurisprudence, 235-242; Clark, Roman Private Law: 
Jurisprudence, I, 114-125. 


19 Savigny, System des heutigen rémischen Rechts, I, §§ 34, 
37; Clark, Practical Jurisprudence, 234-235. Among the five 
means of genuine interpretation in French law, the fourth is ‘‘to 
weigh the consequences which the legal precept would produce 
according to whether one understood it in the one sense or in the 
other.”’ Baudry-Lacantinerie, Précis de droit civil, I, § 100. 


56 LAW AND MORALS 


exposition of a logically implied content of legal 
precepts, two doors are left open. The court 
must determine whether the criteria of the literal 
meaning of the words and of the text read with 
the context yield a “satisfactory” solution. If he 
holds that they do not, he must inquire into the 
“intrinsic merit” of the competing interpretations. 
“Satisfactory” will almost always mean in prac- 
tice, morally satisfactory. “Intrinsic merit” will 
always tend to mean intrinsic ethical merit.?° 


20 “T think it difficult to express the amount of importance in- 
volved in this decision. The principle of it comprises such a 
state of things as this: A man builds a house upon his own land, 
and he builds it to a certain extent forwards, that is, towards 
the roadway of a street. It may be that in truth and in fact, 
and as everybody afterwards would be of opinion upon seeing the 
place, he has not built it beyond the real line of buildings of the 
street, that, in truth and in fact, he has merely used his own 
property and has not contravened that which is the real object 
of the statute; and it may be that the architect, as has been sug- 
gested in former cases, either has taken somewhat too strictly a 
mathematical view of the matter, or has made a mistake. It may 
be that he himself would be ready to acknowledge that he has 
made a mistake. And yet it is contended that the magistrate, by 
this legislation, is bound to order a person who has built his 
own house, at his on cost, on his own land, to pull it down, and 
that the first legal tribunal before which the case comes, is 
bound to make an order and to do a great injustice. It may be 
that that is the law. If that is the true interpretation of the 
statute, if there are no means of avoiding such an interpretation 
of the statute, a judge must come to the conclusion that the 
legislature by inadvertence has committed an act of legislative in- 
justice; but to my mind a judge ought to struggle with all the 
intellect that he has, and with all the vigour of mind that he 
has, against such an interpretation of an Act of Parliament.” 
Brett, M. R., in Plumstead Board of Works v. Spackman, 13 
Q. B. D. 878, 886-887. 


“Tf a statuté be susceptible of two constructions, one con- 
sistent with natural equity and justice and one inconsistent 
therewith, the court should give it that construction which com- 
ports with natural equity and justice.’”’ Blanford, J., in Lombard 
v. Trustees, 73 Ga. 322, 324. 


LAW AND MORALS 37 


“We are not satisfied with the reasoning of those cases and 
have been unable to reach the conclusion that a mere prospective 
legal heir, or devisee in a will, can make certain that which was 
uncertain, by his own felonious act, in the cold-blooded murder of 
the party from whom he or she expects to inherit. We do not 
believe that these courts have fully applied and used the canons 
of statutory construction which we have the right to use and ought 
to use to avoid a result so repugnant to common right and com- 
mon decency. The construction as has been given such statutes 
bruises and wounds the finer sensibilities of every man. In the 
case at bar, the murdered woman, younger in years, might have 
outlived the prospective heir. The property involved in this very 
suit might have been used by her for her own comforts even 
though she had died first. Being hers it might have been sold 
and the proceeds disposed of by gift or otherwise. Can it be 
said that one, by high-handed murder, can not only make himself 
an heir in fact, when he had but a mere expectancy before, but 
further shall enjoy the fruits of his own crime? To us this 
seems abhorrent to all reason, and reason is the better element 
of the law.”? Graves, J., in Perry v. Strawbridge, 209 Missouri 
621, 628-629. 


In Griffin v. Interurban St. Ry. Co., 179 N. Y. 438, a penal 
statute provided: ‘‘For every refusal to comply with the re- 
quirements of this section the corporation so refusing shall for- 
feit fifty dollars to the aggrieved party.” In a series of prior 
decisions the New York Court of Appeals had held that where 
the words ‘“‘each offence” or ‘‘every offence’? were used cumula- 
tive penalties had been provided for. In rendering the opinion 
of the court Bartlett, J., said: ‘‘There have been presented at 
the bar of this court, civil and criminal cases where the aggre- 
gate penalties sought to be recovered have amounted to enormous 
and well-nigh appalling sums by reason of plaintiffs permitting a 
long period to elapse before beginning actions. Actions of this 
nature have become highly speculative and present a phase of 
litigation that ought not to be encouraged.” 


“The court is of opinion that if cumulative recoveries are to 
be permitted, the legislature should state its intention in so many 
words; that a more definite form of statement be substituted for 
the words hitherto deemed sufficient.” (p. 449) 


“It is not just that a man should by virtue of this act be 
assessed to the payment of money, in the raising of which he 
could have no agency, or from which he could not (without any 
fault of his own) derive any benefit. Thus if he was included 
within a district, after the vote to raise the money had passed, 
it is admitted that he could not be assessed to the payment of it; 
for not being a member of the district when the money was 
voted, he could have had no voice in the vote. As he may by 
the act of his town, against his consent, be excluded from the 
district, by which the vote was passed, and included in another 
before the assessment is made, so he can derive no benefit from 
the payment of the assessment, and it is therefore unreasonable 
that he should be assessed. If by the alteration of the district a 
number of persons may be excluded, lessening the numbers, and 
wealth of the district, it would not be reasonable to assess the 


58 LAW AND MORALS 


Another point of contact is in the application 
of law.21 Analytical jurists have liked to think 
of the application of legal precepts as a purely 
mechanical process. Such things as the margin 
of discretion in the application of equitable reme- 
dies, the appeal to the ethical in the maxims of 
equity, and the ethical element in such equitable 
doctrines as those with respect to “hard bar- 
gains,” mistake coupled with “sharp practice,” 
and the like, were distasteful to them. Partly 
under their influence and partly from the same 
spirit of the maturity of law that led to the ana- 
lytical way of thinking, in the last quarter of the 





whole sum on the remaining members, although they alone will 
have the benefit of it: for they might have refused to pass the 
vote to raise so large a sum of money. . . The true and 
necessary construction of the statute therefore requires that the 
district voting to raise the money should have the same limits 
when the money is assessed.” Parsons, C. J., in Richards v. 
Dagget, 4 Mass. 534, 537. 

See also Ham v. McClaws, 1 Bay (S. C.) 93, 96. 

In the case first quoted, however, a majority of the Court of 
Appeal gave to the statute the construction which Brett, M. R., 
considered so unjust that some way of avoiding it must be 
found. Compare the majority opinion and the dissenting opinion 
of Lord Gordon in River Wear Commissioners v. Adamson, 2 
A. C. 743, and see Flint River Co. v. Foster, 2 Ga. 194, 201-202. 

See also the remarks of Lord Watson as to the “‘intention of 
the legislature,’”’ Salmon v. Salmon & Co., [1897] A. C. 22, 38. 


21 Science of Legal Method (Modern Legal Philosophy Series, 
vol. 9) chaps. 1-5; Wigmore, Problems of Law, 65-101; Pound, 
The Enforcement of Law, 20 Green Bag, 401; Pound, Courts and 
Legislation, 7 American Political Science Review, 361-383 (also 
in Science of Legal Method, 202-228); Geny, Méthode d’inter- 
prétation (2 ed.) II, §§ 196-200; Britt, Die Kunst der Recht- 
sanwendung; W.  Jellinek, Gesetz, Gesetzesanwendung und 
Zweckmassigkettserwagung; Somlo, Juristische Grundlehre, §§ 
110-122; Heck, Gesetzesauslegung und Interessenjurisprudenz, § 
2; Stampe, Grundlegung der Wertbewegungslehre; Ransson, Essai 
sur Vart de juger. 


LAW AND MORALS 59 


nineteenth century some American courts sought 
to eliminate, or at least to minimize, the scope of 
these doctrines, and to make equitable relief, once 
jurisdiction was established, as much a matter of 
course as damages at law.?? But this equitable 
or individualized application of legal precepts is 
called for more and more in the law of today. It 
is the life of administration, whether executive or 
judicial. The lack of power of individualization 
in judicial decision in the immediate past has led 
to a multiplication of executive administrative 
commissions and administrative tribunals and a 
transfer thereto of matters formerly of judicial 
cognizance, which can but bring home to lawyers 
the futility of nineteenth-century attempts to 
make courts into judicial slot machines.?% 

In fact the ethical element in application of law 
was never excluded from the actual administra- 
tion of justice. Our analytical science of law in 
the last century did no more than cover up the 


22 E.g., see 4 Pomeroy, Equity Jurisprudence, § 1404 and note 
2. Compare the arbitrary rule as to mutuality of equitable relief 
which developed in nineteenth-century American decisions with 
the remarks of Cardozo, J., in Epstein v. Gluckin, 233 N. Y. 
490, 494. 

23 “The growth in this country, during the past forty years, of 
administrative regulation has been unparalleled and its expansion 
and enveloping tendency are certain to continue.’’ Address of 
W. D. Guthrie, Esq., as President of the New York State Bar 
Association, January 19, 1923. See Pound, Justice According to 
Law—Executive Justice, 14 Columbia Law Rev. 12; Pound, The 
Revival of Personal Government, Proc. New Hampshire Bar 
Ass’n, 1917, 13. As to Europe, see Laun, Das freie Ermessen 
und seine Grenzen (1910) with full bibliography. 


60 LAW AND MORALS 


actual process with dogmatic fictions that for a 
time made us blind to what we were doing and 
led to some unhappy attempts to reduce to rule 
-things that do not admit of rule. It will suffice 
to note two aspects of application of law in which 
the ethical element has always been decisive—the 
application of legal standards, and judicial exer- 
cise of discretion. A great and increasing part 
of the administration of justice is achieved 
through legal standards. These standards come 
into the law, in the stage of infusion of morals, 
through theories of natural law.24 They have to 
do with conduct, or with conduct of enterprises, 
and contain a large moral element. ‘Thus the 
standard of due care in our law of negligence, 
the standard of fair competition, the standard of 
fair conduct of a fiduciary, the Roman standard 
of what good faith demands in a particular trans- 
action, or the Roman standard of how a prudent 
and diligent person sui juris would act under 
such circumstances, all involve an idea of fairness 
or reasonableness. Furthermore like all moral 
precepts these legal standards are individualized 
in their application. They are not applied mechan- 
ically to a set of facts looked at in the abstract. 


*4Their origin is to be found in the formula in actions bonae 
fidei—quicquid paret ob eam rem Numerium Negidium Aulo Agerio 
ex fide bona dare facere opportere. See Gaius, iv, § 47; Inst. iv, 
6, §§ 28, 30; Cicero, De officiis, iii, 17, 70. 


LAW AND MORALS 61 


They are applied according to the circumstances 
of each case, and within wide limits are applied 
through an intuition of what is just and fair, in- 
volving a moral judgment upon the particular 
item of conduct in question.?® 


> “Negligence is the failure to observe for the protection of the 
interests of another person that degree of care, precaution and 
vigilance which the circumstances justly demand, whereby such 
person suffers injury.’’ Cooley, Torts, 630. 


“Negligence is the omission to do something which a reason- 
able man, guided upon those considerations which ordinarily 
regulate the conduct of human affairs, would do, or doing some- 
thing which a prudent and reasonable man would not do.” Alder- 
son, B., in Blyth v. Birmingham Waterworks Co., 11 Ex. 781, 784. 


_ That application of the standard of due care involves a moral 
judgment but is not a purely moral judgment, see Holmes, The 
Common Law, 107 ff. 


“All charges made for any service rendered or to be rendered 
in the transportation of passengers or property and for the trans- 
mission of messages by telegraph, telephone, or cable, as aforesaid, 
or in connection therewith, shall be just and reasonable; and 
every unjust and unreasonable charge for such service or any 
part thereof is prohibited and declared to be unlawful. A 


“And it is hereby made the duty of all common carriers subject 
to the provisions of this act to establish, observe and enforce just 
and reasonable classifications . . . and just and reasonable 
regulations }.and practices... and every. ..... Junjust 
and unreasonable classification, regulation, and practice with ref- 
erence to commerce between the states or with foreign countries 
is prohibited and declared to be unlawful.” Act to Regulate 
Commerce, § 1. 


As to application of these standards, see Pound, Administrative 
Application of Legal Standards, 44 Rep. Am. Bar "Assn., 445, 456. 


“Unfair methods of competition in commerce are eae de- 
clared unlawful.” Federal Trade Commission Act, § 5 


“[In case of transactions between attorney and client] on the 
one hand it is not necessary to establish that there has been 
fraud or imposition upon the client; and on the other hand it is 
not necessarily void throughout, ipso facto. But the burthen of 
establishing its perfect fairness, adequacy, and equity is thrown 
upon the attorney, upon the general rule that he who bargains in 
a matter of advantage with a person placing a confidence in him is 
bound to show that a reasonable use has por made of that con- 
fidence; a rule applying equally to all persons standing in con- 
fidential relations with each other.” 1 Story, Equity Jurispru- 
dence, § 311. 


62 LAW AND MORALS 


No less clearly there is a point of contact be- 
tween law and morals in those matters which are 
left to the personal discretion of the judge. In 
cases where there is a margin of discretion in the 
application of legal precepts, as in the doctrines 
of equity above referred to, we speak of “judi- 
cial” discretion. Here there are principles gov- 
erning judicial action within the discretionary mar- 
gin of application, although at bottom there is not 
a little room for personal moral judgment. There 
are many situations, however, where the course 
of judicial action is left to be determined wholly 
by the judge’s individual sense of what is right 
and just.2® Thus in imposition of sentences, 
within certain legally fixed limits; in suspension 
of sentence, where it is allowed; in the summary 
jurisdiction of courts to prevent abuse of pro- 
cedural rules; in the tribunals which are now set- 
ting up so generally for petty causes; in award- 
ing the custody of children in some jurisdictions ; 
in the choice of trustees or guardians or receivers 





In Roman law in actions arising out of guardianship, partner- 
ship, fiduciary pledge, mandate, sale, letting and hiring, to which 
others were added later, ‘‘the judge had a larger discretion, and 
the standard set before him was what was fairly to be expected 
from businesslike men dealing with one another in good faith.” 
Roby, Roman Private Law, II, 89. See Cicero, De officiis, iii, 
17, 70; Cicero, De natura deorum, iii, 30, § 74; Gaius, iv, § 62; 
Institutes, iv, 6, § 30. 


26 See Isaacs, The Limits of Judicial Discretion, 32 Yale Law 
Journal, 339. 


LAW AND MORALS 63 


—in these and like cases judicial action must pro- 
ceed largely on personal feelings as to what is 
right. The objections to this element in the ju- 
dicial function are obvious. It has been said that 
at best it is the “law of tyrants.”27 But hard as 
we tried in the last century to reduce it to the 
point of extinction, there has proved to be a point 
beyond which rule and mechanical application are 
impotent, and the tendency of the day is to ex- 
tend rather than to restrict its scope. Perhaps 
the true way to make it tolerable is to recognize 
that here we are in the domain of ethics, and that 
ethics, too, is a science and not without principles. 

It will have been noted that the analytical ac- 
count of the points of contact between law and 
morals puts the matter as if there were three or 
four restricted areas in which exceptionally such 
contact may take place. Occasionally it may hap- 
pen that a case arises for which there is no ap- 
plicable legal precept and the judge must work 
one out for the case from the legal materials at 
hand, with the guidance of a certain traditional 
technique of analogical development of the pre- 
cedents.28 Occasionally, too, it may happen that. 
an authoritatively established legal precept is so 
Saat oa Caniiden: quoted by Fearne, Contingent Remainders, 


(10 ed.) 534 note t. It need not be said that the law of property 
is not a suitable field for discretion. 


78 Austin, Jurisprudence, (3 ed.) II, 660-663. 


64 LAW AND MORALS 


ill-expressed that genuine interpretation becomes 
necessary. In that process it may happen that as 
a last resort the judge must pass upon the relative 
merit of the several possible interpretations from 
an ethical standpoint. Also, in those exceptional 
cases for which ordinary legal remedies are not 
adequate, a court of equity may have a certain 
margin of power to go upon the moral aspects of 
the case in granting or denying extraordinary re- 
lief. In a few matters there are “mixed ques- 
tions of law and fact” where the trier of fact, in 
adjusting a legal standard to the facts of a par- 
ticular case, may find opportunity for an inci- 
dental moral judgment. Finally a few matters 
of administration must be left to the magistrate’s 
personal sense of right. All this looks as if in its 
everyday course judicial justice was quite di- 
vorced from ideas of right and moral justice, 
with intrusion of morals into the legal domain 
only in a residuum of cases for which adequate 
legal provision had not yet been made, or in 
which an administrative element still lingered in 
the courts instead of being committed to the ex- 
ecutive. But this plausible explanation repre- 
sents juristic desire for a certain, uniform, pre- 
dicable justice much better than it represents ju- 
‘dicial justice in action. In our appellate tribunals 
the difficulty that brings the cause up for review 


LAW AND MORALS 65 


is usually that legal rules and legal conceptions 
have to be applied by analogy to causes that de- 
part from the type for which the precept was de- 
vised or given shape. Such departures vary in- 
finitely. Cases are seldom exactly alike. Hence 
choice from among competing analogies and 
choice from among competing modes of analogi- 
cal development are the staple of judicial opin- 
ions.2® The line between “genuine” and “spuri- 
ous” interpretation can be drawn only for typical 
cases. They shade into one another and a wide 
zone between them is the field in which a great 


29 E.g., if one had to name six significant cases in the law of 
torts, I suspect they would be: Pasley v. Freeman, 3 T. R. 51 
(1789); Davies v. Mann, 10 M. & W. 546 (1842); Brown v. 
Kendall, 6 Cush. 292 (1850); Lumley v. Gye, 2 E. & B. 216 
(1853); Rylands v. Fletcher, L. R. 3 H. L. 330 (1868); Heaven 
v. Pender (opinion of Brett, ach 11 QO. B. D. 503 (1883). But note 
how each one of them involves a choice between two possible 
lines of analogical reasoning and sets the law on some point in a 
path leading from some one analogy rather than from another. 
Thus in Pasley v. Freeman as between an analogy of warranty 
or of relation and one of assault—as between a contractual or 
relational and a delictual analogy—the court chose the latter and 
established a liability for intentional deceit although the defendant 
had in no wise profited by the deceit and although he was under 
no contract duty and was party to no relation which called on 
him to speak. Thus we get a principle of liability for aggres- 
sion of one person upon another. Lumley v. Gye chose the 
analogy of injury to tangible property and so, we say, applied the 
same principle to intentional interference with advantageous re- 
lations. Brown v. Kendall is an epoch-making case choosing de- 
cisively between substantive conceptions on the one hand and 
procedural distinctions on the other hand, as the basis of liability 
for injuries due to culpable carrying out of a course of conduct 
not involving aggression. In Heaven v. Pender we get a 
thoroughgoing rational exposition of the resulting principle. Ry- 
lands v. Fletcher involved choice between the analogy of liability 
for culpable conduct and the analogy of liability (regardless of 
culpability) for the escape of animals and resulting damages. 
Davies v. Mann involved a choice between a procedural analogy 
of a bar to recovery and a substantive analogy of liability for 
culpably caused injury. 


66 LAW AND MORALS 


‘part of appellate decision must take place.%° 
‘Likewise the extraordinary relief given by courts 
of equity has become the everyday form of jus- 
tice for large classes of controversies and legisla- 
tion has been adding new classes.31_ The transi- 
tion to an urban, industrial society, which, as the 
last census shows, has definitely taken place for 
the country as a whole, calls for more summary, 
administrative, offhand justice, of the type for- 
merly peculiar to petty courts, and tribunals with 
flexible procedure and wide powers of discre- 
tionary action are springing up everywhere. In 
truth, there are continual points of contact with 
morals at every turn in the ordinary course of ju- 
dicial administration. A theory that ignores them, 
or pictures them as few and of little significance, 
is not a theory of the actual law in action. 

Morals are more than potential materials for 
the legislative lawmaker. Ethics can serve us 
more than as a critique of proposed measures of 
WaT histeas recognized judicially long ago: ‘“‘And the judges 
themselves do play the chancellor’s part upon statutes, making 
construction of them according to equity, varying from the rules 
and grounds of law, and enlarging them pro bono publico, against 
the letter and intent of the makers, whereof our books have 


many hundreds of cases.’’ Lord Ellesmere in Earl of Oxford’s 
fee 1 White v. Tudor, Leading Cases in Equity, (8 ed.) 773, 


31 Vittleton v. Fritz, 65 Ia. 488; State v. Gilbért, 126 Minn. 95; 
U. S. Act of July 2, 1890, § 4, 26 St. L. 209; N. Y. Penal Law, 
§ 1217, Act of April 4, 1921, L. 1921 ch. 155. 


LAW AND MORALS 67 


lawmaking as they are presented to the legislator. 
To that extent the analytical jurist was wrong. 
But in another respect, and to a certain extent, he 
was right. When we have found a moral prin-. 
ciple we cannot stop at that. We have more to 
do than to formulate it in a legal rule. We must 
ask how far it has to do with things that may be 
governed by legal rules. We must ask how far 
legal machinery of rule and remedy are adapted 
to the claims which it recognizes and would se- 
cure. We must ask how far, if we formulate a 
precept in terms of our moral principle, it may be 
made effective in action.22, Even more we must 
consider how far it is possible to give the moral 
principle legal recognition and legal efficacy by 
judicial action or juristic reasoning, on the basis 
of the received legal materials and with the re- 
ceived legal technique, without impairing the 
general security by unsettling the legal system as 
a whole.*3 As the fifteenth-century lawyer said 
in the Year Books, some things are for the law of 
the land, and some things are for the chancellor, 
and some things are between a man and his 
confessor.34 


82 See Pound, The Limits of Effective Legal Action, 3 Journ. 
Am. Bar Assn., 55, 27 Int. Journ. Ethics, 150. 


33 36 Harv. Law Rev. 947-948. 


s a cane: arguendo in Anonymous, Y. B. Hil. 4 Hen. 7, pl. 
yor dole ey 


68 LAW AND MORALS 


What is it that sets off the domain of law and 
that of morals, assuming that their provinces are 
neither identical nor wholly distinct? If there 
are two forms or modes of social control, each 
covering much of the same ground, yet each hav- 
ing ground that is peculiarly its own, what de- 
termines the boundary between them? Is it a 
distinction in subject matter or in application of 
legal precepts, on the one hand, and moral prin- 
ciples, on the other, or is it both? Analytical 
jurists have assured us that it is both. In the last 
century they insisted much on the distinction in 
respect of subject matter, and on the distinction 
in respect of application. Let us see how they 
made these distinctions and how far their points 
are holding good in the stage of legal develop- 
ment upon which we are entering. 
~ With respect to subject matter, it is said that 
morals have to do with thought and feeling, while 
the law has to do only with acts; that in ethics we 
aim at perfecting the individual character of men 
while law seeks only to regulate the relations of 
individuals with each other and with the state. 
It is said that morals look to what is behind acts, 
rather than to acts as such. Law, on the other 
hand, looks to acts, and only to thoughts and 
feelings so far as they indicate the character of 
acts and thus determine the danger to the general 


LAW AND MORALS 69 


security or the general morals which they in- 
volve.2° The act with malice or dolus is more 
anti-social than the one with mere stupidity or a 
slow reaction time behind it. Hence, for ex- 
ample, the criminal law calls for a guilty mind. 
But in a crowded community where mechanical 
agencies of danger to the general security are in 
everyday use, and many sorts of business activity 
incidentally involve potential injury to society, 
thoughtlessness and want of care, or stupidity, or 
even neglect to supervise one’s agent at his peril, 
may be as anti-social as a guilty mind, and so a 
group of legal offences may develop that take no 
account of intent.?® 


% “For though in foro conscientiae a fixed design or will to do 
an unlawful act is almost as heinous as the commission of it, yet 
as no temporal tribunal can search the heart or fathom the in- 
tentions of the mind, otherwise than as they are demonstrated 
by outward actions, it cannot therefore punish for what it cannot 
know.” 4 Blackstone, Commentaries, 21. 


“Now the state, that complains in criminal causes, does not 
suffer from the mere imaginings of men. To entitle it to com- 
plain, therefore, some act must have followed the unlawful 
thought. This doctrine is fundamental and in a general way 
universal.”’ 1 Bishop, New Criminal Law, § 204. 

“The object of the law is not to punish sins, but is to prevent 
certain external results.”” Holmes, J., in Commonwealth v. Ken- 
nedy, 170 Mass. 18, 20. 


See Amos, Science of Law, 32; Stone, Law and Its Adminis- 


tration, 33-35; Tissot, Introduction philosophique a létude du 
droit, II, 252-255. 

% “Public policy may require that in the prohibition or punish- 
ment of particular acts it may be provided that he who shall do 
them shall do them at his peril and will not be heard to plead in 
his defense good faith or ignorance.”’ Shevlin-Carpenter Co. v. 
Minnesota, 218 U. S. 57, 70. Compare State v. Quinn, 131 La. 
490, 495; Wells Fargo Express v. State, 79 Ark. 349, 352 (statute 
against shipment of game in interstate commerce—no defense 


70 LAW AND MORALS 


As to the other proposition, it is said that as 
betweait external and internal morality the law 
has to do with the former only. Thou shalt not 
covet thy neighbor’s house is a moral rule. But 
unless covetousness takes outward form, e.g., in 
larceny, the law does not and indeed cannot deal 
with it.37 Not that the law closes its eyes to the 
internal. But law operates through sanctions— 
through punishment, substitutional redress, spe- 
cific redress, or forcible prevention. Hence it 
must have something tangible upon which to go. 
The story of the schoolmaster who said, “Boys be 
pure in heart or I'll flog you,” is in point.3§ 
Purity in speech and act is the most that the 
penalty of flogging can insure. Because of the 
practical limitations involved in application and 
administration, this point made by the analytical 
jurist is well taken. The lawmaker must remem- 
ber these practical limitations and must not sup- 
pose that he can bring about an ideal social order 





that carrier did not know contents of parcel shipped); Welch v. 
State, 145 Wis. 86 (statute as to sale of oleomargarine—no de- 
fense that substance served was sent to defendant in response to 
an order for butter and bona fide believed by him to be butter); 
State v. Laundy, 103 Or. 443 (‘‘criminal syndicalism” act—no 
matter whether or not accused who joined I. W. W. knew the na- 
ture and purposes of the organization); Hobbs v. Winchester 
Corporation [1910] 2 K. B. 471. 


87 Pollock, First Book of Jurisprudence, (4 ed.) 46-47. 
Td. 47, note 1. 


LAW AND MORALS 71 


by law if only he can hit upon the proper moral 
principles and develop them properly by legisla- 
tion. 

But nineteenth-century jurists were inclined to 
carry this argument too far and to ignore moral 
considerations merely as such—to ignore those 
which the law can and should take into account, 
and to assume that they might do so simply on 
the ground of the distinction between the legal 
and the moral. Because it is impracticable to 
make the moral duty of gratitude into a legal 
duty, it does not follow that the law is to deal 
‘only with affirmative action and not seek to en- 
force tangible moral duties not involving affirma- 
tive action even though legal enforcement is prac- 
ticable. 

For example, take the case of damage to one 
which is clearly attributable to wilful and morally 
inexcusable inaction of another. Suppose a case 
where there is no relation between the two except 
that they are both human beings. If the one is 
drowning and the other who is at hand and has a 
rope is inert, if he sits on the bank and smokes 
when he could act without the least danger, the 
law has refused to impose liability. As Ames 
puts it: “He took away nothing from a person in 
jeopardy, he simply failed to confer a benefit 
upon a stranger. .. . The law does not compel 


72 LAW AND MORALS 


active benevolence between man and man. It is 
left to one’s conscience whether he will be the 
good Samaritan or not.’’39 

What difficulties are there here to make the law 
hesitate? To some extent there are difficulties of 
proof. We must be sure the one we hold culpa- 
ble was not dazed by the emergency.4® Again, he 
who fails to act may assert some claim that must 
be weighed against the claim of him whom he 
failed to help. Thus, in the good Samaritan case 
the priest and the Levite may have had good 
cause to fear robbers, if they tarried on the way 
and were not at the inn before sunset. Also, it 
may sometimes be difficult to say upon whom the 
legal duty of being the good Samaritan shall de- 
volve. If John Doe is helpless and starving, shall 
he sue Henry Ford or John D. Rockefeller? But 
the case of an athletic young man with a rope and 
life belt at hand, who sits on a bench in a park 
along a river bank and sees a child drown, does 
not present these difficulties. Yet the law makes 
no distinction. Practical difficulties are not al- 
ways or necessarily in the way. In the case put 
there is nothing intrinsic in the moral principle 
aloo Bollea, Phe Morel Daty t¢ (0d. Gihers ass Bade Oem 


Liability, 56 University of Pennsylvania Law Rev. 217, 316; 
Bruce, Humanity and the Law, 73 Central Law Journ. 335. 


# See Rivers, Instinct and the Unconscious, 55. 


LAW AND MORALS 73 


which should prevent legal recognition of it and 
the working out of appropriate legal rules to give 
it effect. Indeed a movement in this direction is 
visible in recent American decisions.44 We must 
reject the opposition of law and morals when 
pushed so far as to justify ignoring the moral 
aspects of such a case as this. 

As to application of moral principles and legal 
precepts respectively, it is said that moral princi- 
ples are of individual and relative application; 
they must be applied with reference to circum- 
stances and individuals, whereas legal rules are 
of general and absolute application. Hence it is 
said, on the one hand, every moral principle is 
tested and described by the circumstances which 
surround its application. Also, in morals, it must 
rest with every man at the crisis of action to de- 
termine his own course of conduct. On the other 
hand, it is said, law must act in gross and to a 


41 In most of the cases allowing recovery there was a relation— 
master and servant, Hunicke v. Meremec Quarry Co., 262 Mo. 
560; Ohio R. Co. v. Early, 141 Ind. 73; Raasch v. Elite Laun- 
dry Co., 98 Minn. 357; Salter v. Nebraska Telephone, Co., 79 
Neb. 373; carrier and passenger, Layne v. Chicago R. Co., 175 
Mo. App. 35, 41. In case of seamen, it has always been recog- 
nized. The Iroquois, 194 U. S. 240; Scarff v. Metcalf, 107 N. Y. 
211. For cases where there was no relation, see Depue v. Flatau, 
100 Minn. 299; Southern Ry. Co. v. Sewell, 18 Ga. App. 544. 

On the whole subject, see Bentham, Principles of Morals and 
Legislation, 322-323; Bentham, Works (Bowring’s ed.) I, 164; 
Bentham, Theory of Legislation (Hildreth’s transl. 5 ed.) 65-66; 
Livingston, Complete Works on Criminal Jurisprudence, II, 126- 
127; Macaulay, Complete Works (ed. 1875) VII, 493-497; Dutch 
Penal Code, art. 450; German Civil Code, § 826; Liszt, Die 
Deliktsobligationen des Biirgerlichen Gesetzbuchs, 72. 


74 LAW AND MORALS 


greater or less extent in the rough. Also, the 
law, so far as possible, seeks to leave nothing to 
doubt with respect to the lawfulness or unlawful- 
ness of a course of conduct. If legal doubts 
exist at the crisis of action, it is considered a 
proof of defects in the law of the time and place. 
In the same spirit it is said that attempts to turn 
moral principles into detailed logical propositions 
lead to casuistry, while attempts to individualize 
the application of legal rules lead to arbitrary 
magisterial action and thus to oppression.*? 

We are not so sure of this opposition of law 
and morals with respect to application as we were 
in the nineteenth century. Thus in illustrating 
the distinction Amos says: “The same penalty 
for a broken law is exacted from persons of an 
indefinite number of shades of moral guilt.”43 
He says this as if it showed conclusively that law 
would not take cognizance of the shades which 
morals would recognize. Probably his genera- 
tion took the statement that the law does not rec- 
ognize shades of guilt for axiomatic. But today, 
through administrative agencies and more en- 
lightened penal treatment, the law is coming more 
and more to fit the treatment to the criminal and 
to do for individual offenders what had been as- 


# Amos, Science of Law, 33-34. 
Td. 34. 


LAW AND MORALS 75 


sumed to be beyond the competency of legal ad- 
ministration of justice.44 We have always had 
some degree of individualized application of legal 
precepts in courts of equity. Today the rise of 
administrative tribunals and the growing tend- 
ency to commit subjects to them that were once 
committed to the courts, bears witness to the de- 
mand for individualized application at many new 
points. It will not do to say that our new régime 
of administrative justice is not part of the law. 
N ineteenth-century science of law assumed 
that all legal rules were potentially in the jurist’s 
head, and were discovered by a purely logical 
process. With the breakdown of this notion of 
the finality of legal premises and logical existence 
of all legal precepts from the beginning, much of 
the significance of the supposed distinction in ap- 
plication between legal precepts and moral prin- 
ciples disappears. Rules of property, rules as to 
commercial transactions, the rules that maintain 
the security of acquisitions and the security of 
transactions in a society of complex economic or- 
ganization—such rules may be and ought to be of 
F-#\See Relasione sul progetto preliminare di codice penale Itali- 
Peels ovoncnon WWorki in the Mansirores:| Cowhhs of Net 
York City; Henderson, Penal and Reformatory Institutions; 
Brockway, Fifty Years of Prison Service; Leeson, The Probation 


System; Lewis, The Offender; Herr, Das moderne amerikanische 
Besserungssystem. 


76 LAW AND MORALS 


general and absolute application. But such rules 
are not ‘the whole of the law nor may they be 
taken for the type of all legal precepts as the ana- 
lytical jurist sought to do. Precepts for human 
conduct, precepts determining for what conduct 
one shall respond in civil proceedings and how he 
shall respond, may admit of a very wide margin 
of individualized application. Indeed in this con- 
nection the law often employs standards rather 
than rules. In case of negligence the law applies 
the standard of the conduct of a prudent man un- 
der the circumstances and puts it to the jury, in 
effect as a moral proposition, to decide on their 
individual notions of what is fair and reasonable 
in the particular case. So in the Roman law, 
where a standard of what a prudent husbandman 
would do is applied to a usufructuary, or a stand- 
ard of the conduct of a prudent and diligent head 
of a family is applied to the parties to a transac- 
tion involving good faith. The opposition be- 
tween law and morals with respect to application 
is significant only in the law of property and in 
commercial law—subjects that were to the fore 
in the nineteenth century—and tends to disappear 
in the law as to civil liability for action injurious 
to others, the subject in which growth is going on 
today. 


LAW AND MORALS 77 


It is equally a mistake to divorce the legal and 
the moral wholly, as the analytical jurists sought 
to do, and to identify them wholly as the natural- 
law jurists sought to do. For granting all that 
has been said as to the analytical distinction be- 
tween law and morals with respect to subject 
matter and application, there remain three points 
at which ethical theory can be of little help to the 
jurist and with respect to which important areas 
in the law will have at least a non-moral charac- 
ter. In the first place, in order to maintain the” 
social interest in the general security, to prevent 
conflict and to set up a legal order in the place of 
private war, the law must deal with many things 
which are morally indifferent. In many cases in 
the law of property and in the law of commercial 
transactions the law might require either of two 
alternative courses of action with equal justice, 
but must choose one and prescribe it in order to 
insure certainty. In such cases developed legal 
systems often exhibit the greatest diversity of de- 
tail. Usually the only moral element here is the 
moral obligation attaching to the legal precept 
merely as such, because of the social interest in 
the security of social institutions, of which law is 
one of the most fundamental. Aristotle pointed 
this out in his distinction between that which is 
just by nature or just in its idea and that which 


78 LAW AND MORALS 


derives its sole title to be just from convention or 
enactment. The latter, he tells us, can be just 
only with respect to those things which by nature 
are indifferent.4° This distinction, handed down 
to modern legal science by Thomas Aquinas, has 
become a commonplace of the philosophy of 
law.4® But we put it to grave misuse in our 
conventional differentiation of mala in se from 
mala prohibita; a doubtful distinction between 
the traditionally anti-social, recognized and pen- 
alized as such in our historically given legal 
materials, and recently penalized infringements 
of newly or partially recognized social interests. 
Aristotle was not speaking of crimes. He gives 
as an example a law setting up an eponym for 
a Greek city-state.47 Recording acts, rules as to 
the number of witnesses required for a will, as 
to the words necessary to create estates, as to 
the making, sealing and delivery of deeds, and 
the like, where the real desideratum is to have 
a rule, to have it promulgated and as Bentham 
would say “cognoscible’—such legal provisions 


* Nicomachean Ethics, v, 7. 


46 Thomas Aquinas, Summa Theologiae, ii, 2, q. 57, art. 2; 1 
Blackstone, Commentaries, 43. See Pound, Introduction to the 
Philosophy of Law, 25-26. 


47 “But the legal is that which originally was a matter of in- 
difference, but which, when enacted, is so no longer; as the 
price of ransom being fixed at a mina, or the sacrificing a goat 
and not two sheep; and further all. particular acts of legislation, 
such as the sacrificing to Brasidas and all those matters which 
are the subjects of decrees.”” Nicomachean Ethics, v, 7. 


LAW AND MORALS 79 


justify Aristotle’s distinction. It is not a matter 
of morals whether we require two witnesses to a 
will or three. All that morals call for is that we 
have a certain, known rule and adhere to it. 
Again, the law does not approve many things 
which it does not expressly condemn.*® Many 
injuries are out of its reach. They are not sus- 
ceptible of proof or they are inflicted by means 
too subtle or too intangible for the legal machin- 
ery of rule and sanction. Many interests must 
be left unsecured in whole or in part because 
they require too fine lines in their delimitation, 
or they are infringed by acts too intangible to ad- 
mit of securing them by legal means. But it be- 
hooves the jurist to be vigilant in these cases. 
He should not assume too lightly that with pro- 
gress in science and improved legal machinery the 
law will forever remain unable to do what it has 
been unable to do in the past. Such things as the 
hesitation of American courts to deal adequately 
with nervous illness caused by negligence without 
any bodily impact, using language of the past 
which is belied at every point by modern physi- 
ology and psychology, 4® or the reluctance of 
some courts to give adequate legal security to 


48 See Amos, Science of Law, 30; Pollock, First Book of Juris- 
prudence (4 ed.) 48-49. 


42 See Goodrich, Emotional Disturbance and Legal Damage, 20 
Michigan Law Rev. 497. 


80 LAW AND MORALS 


personality, especially to the individual claim to 
privacy,°° demonstrate the practical importance 
of insisting that our science of law shall not ig- 
nore morals. So long as for good reasons we 
cannot deal with such things legally, we must 
rest content. But we must not allow an analytical 
distinction between law and morals to blind 
us to the need of legal treatment of such cases 
whenever the onward march of human knowl- 
edge puts it in our power to treat them effectively. 

Thirdly, law has to deal with cases of incidence 
of loss where both parties are morally blame- 
less.5+ In such cases it may allow the loss to re- 
main where it falls or it may seek to secure some 
social interest by changing the incidence of the 
loss. In such cases a large part of the legal dif- 
ficulty arises from the very circumstance that the 
parties are equally blameless. Of late an “in- 
surance theory” of liability has been urged for 
such situations. All of us, not merely the person 
who chances to be injured, should bear the losses 
incident to the operations of civilized society. 
Hence the law is to pass the loss on to all of us 
by way of imposing legal liability upon some one 
who is in a position to bear it in the first instance, 


5 See Pound, Interests of Personality, 28 Harvard Law Rev. 
343, 362-364. 


51 Pollock, First Book of Jurisprudence, (4 ed.) 50-54. 


LAW AND MORALS 81 


and impose it ultimately upon the community in 
the way of charges for service rendered. Since 
the Workmen’s Compensation Acts there has 
been a growing tendency in this direction.®? But 
juristically these liabilities are always incident to 
some relation. Also the legislative reasons for 
imposing them have been primarily economic. 
Very likely the juristic and economic consider- 
ations may be given an ethical formulation. 
Nevertheless, I suspect that in this case ethics has 
followed jurisprudence, and that ethical theory 
does not help us here beyond recognizing the 
moral quality of obedience to the legal rule. 
Thus, respondeat superior is not a universal moral 
rule.°? The shifting of the burden to the em- 
ployer, no matter how careful he has been and 
how free from fault, proceeds on the social in- 
terest in the general security, which is maintained 
best by holding those who conduct enterprises in 
which others are employed to an absolute liability 
for what their servants do in the course of the 
enterprise. 








52 See, for example, the proposition to extend the principle of 
the workmen’s compensation acts to railway accidents. Ballan- 
tine, Modernizing Railway Accident Law (reprinted from the 
Outlook of November 15, 1916). 

53 The various speculative justifications of the doctrine are 


criticized in Baty, Vicarious Liability, chap. VIII (“Justification 
in Ethics’’). 


82 LAW AND MORALS 


Such cases require definite rules in order to 
prevent arbitrary action by the magistrate. They 
differ from cases, such as negligence, where the 
moral quality of acts is to be judged with refer- 
ence to a legally-fixed standard applied to the 
particular circumstances. In the latter, within 
wide limits, each trier of fact may have his own 
notion. In the former, this could not be toler- 
ated. The most we can ask in the former is that 
our measure for maintaining the general security 
be not ethically objectionable. The moment we 
make a rule for a case of the former type we are 
not unlikely to provide a legal rule which is not a 
moral rule. 

A closely related situation, which has given 
much difficulty, arises where both parties to a 
controversy have been at fault and the law must 
fix the incidence of loss in view of the culpabil- 
ity of each. It might be allowed to rest where it 
chanced to fall.°4 Or the whole might be cast 


54 “The reason of this rule is that, both parties being at fault, 
there can be no apportionment of the damages. . . The law 
does not justify or excuse the negligence of the defendant. It 
would, notwithstanding the negligence of the plaintiff, hold the 
defendant responsible, if it could. It merely allows him to es- 
cape judgment because, from the nature of the case, it is unable 
to ascertain what share of the damages is due to his negligence. 
He is both legally and morally to blame, but there is no standard 
by which the law can measure the consequences of his fault, and 
therefore only, he is allowed to go free of judgment.’’ Sander- 
son, J., in Needham v. San Francisco R. Co., 37 Cal. 409, 419. 
See also Kerwhacker v. Cleveland R. Co., 3 Ohio St., 172, 188; 
Heil v. Glanding, 42 Pa. St. 493, 498. 


LAW AND MORALS 83 


on the one who is the more culpable, as by the 
doctrine of comparative negligence.65 Or the 
whole might be cast on the one last culpable, as 
by the “last clear chance” doctrine®® Or the loss 
might be divided or apportioned; either divided 
equally, or apportioned according to their respec- 
tive culpability, as in the civil law and in ad- 
miralty.°* If we had any machinery for the ac- 
curate quantitative or qualitative measurement ot 
culpability in such cases, the latter would be re- 
quired on ethical grounds. It is because all ap- 
portionment in such cases is theoretical, and at 
best arbitrary, that the law is troubled what to do. 
The fact that five doctrines have obtained on this 
subject and that American courts in the last cen- 
tury experimented with at least four of them 
speaks for itself. 

In addition there is one general characteristic 
of law that makes for a certain opposition be- 
tween the legal and the moral. The very concep- 
tion of law involves ideas of uniformity, regular- 
ity, predicability. Administration of justice ac- 
cording to law is administration by legal precepts 
and chiefly by rule. But even the most flexible of 


55 Cooper, J., in Louisville R. Co. v. Fleming, 14 Lea (Tenn.) 
128, 135; 1 Shearman and Redfield, Negligence, (6 ed.) §§ 102, 
103. 


56 Davies v. Mann, 10 M. & W. 546. 


51 The Max Morris, 137 U. S. 1; Scott, Collisions at Sea Where 
Both Ships Are in Fault, 13 Law Quarterly Rev. 17. 


84 LAW AND MORALS 


mechanisms. will operate more or less mechanic- 
ally, and it is not easy to make legal machinery 
flexible and at the same time adequate to the gen- 
eral security. The requirements of particular 
cases must yield to the requirements of generality 
and certainty in legal precepts and of uniformity 
and equality in their application. Hence even 
though in general the law tends to bring about 
results accordant with the moral sense of the 
community, the necessarily mechanical operation 
of legal rules will in particular cases produce sit- 
uations where the legal result and the result de- 
manded by the moral sense of the community are 
out of accord.°S When such things happen it is 
likely to be because of the survival of rules which 
have merely a historical basis. But to a certain 
extent they are an inevitable by-product of 
justice according to law. 

So much must be conceded to the analytical 
jurist. Yet we must not omit to note that in the 
last century he pressed these points too far. 
Thus a writer upon ethics, who shows in marked 
degree the effects of analytical jurisprudence, 
says: “The law protects contracts which were 
made in legitimate business without regard to 
whether their provisions still conform to justice 
" 88T have treated this more fully in a paper entitled The Causes 


of Popular Dissatisfaction with the Administration of Justice, 29 
Rep. Am. Bar Assn., 395, 397-398. 


LAW AND MORALS 85 


or not. Owing to unforseen circumstances things 
may so have changed as to cause the ruin of one 
of the contracting parties should the contract now 
be carried out, perhaps without substantially 
benefitting the other party. The law is not con- 
cerned with that.”°® The proposition is true of 
the strict law, although in practice in such a case 
it might not be easy to find a jury that would give 
an adequate value to the bargain in its verdict in 
an action for damages. But when the promisee 
went into equity for his only effective and ade- 
quate remedy (specific performance) he would 
encounter the chancellor’s margin of discretion in 
the application of that remedy and the doctrine 
that supervening circumstances may make a bar- 
gain so hard that the court will refuse to enforce 
it.°° In other words, the law in action is not as 
bad as the author would have us believe. 

And yet there are too many points, such, for 
example, as the law with respect to promises made 
in the course of business but without a tech- 








°° Paulsen, Ethics, (Thilly’s transl.) 629. The influence of 
Jhering on Paulsen’s views as to the relation of law and morals 
is manifest. Hence his position is substantially that of the 
analytical jurists. Ethics, (Thilly’s transl.) 624-637. 


60 See Willard v. Tayloe, 8 Wall. 557. In the civil law such 
cases are provided for by administrative moratoria. Thaller, 
Traité élémentaire de droit commerctel (6 ed.) §§ 1515 ff. Com- 
pare the Beneacsey competentiae in Roman law, Dig. xlii, 1, 16-17, 
Miter 1, 198S§ zs 1, 17, 173; Baudry-Lacantinerie, Précis de droit 
civil, (11 ed.) I § 529; and in American legislation limitations 
on the power of creditors to exact satisfaction. Thompson, Home- 
steads and Exemptions, §§ 40, 379 


86 LAW AND MORALS 


nical consideration, where we have not exerted 
ourselves as we should have done to bring the 
legal and the moral into accord.6* The _philo- 
ical jurist. was too prone to find ingenious 
philosophical justification for rules and doctrines 
and institutions which had outlived the conditions 
for which they arose and had ceased to yield just 
results. The historical jurist was too prone to 
find a justification for an arbitrary rule in the 
fact that it was the culmination of a historical 
development. The analytical jurist banished all 
‘ethical considerations, all criticism of legal pre- 
cepts with reference to morals, from the law 
books. If the precept could be fitted logically 
into a logically consistent legal system, it was 
enough. Such things are intelligible as a reac- 
tion from extravagances of the law-of-nature 
school. They are intelligible also in a stage of 
legal development, following a period of growth, 
when it was expedient for a time to assimilate 
and systematize the results of creative judicial 
and juristic activity. Moreover, the latter part of 
the nineteenth century was not a constructive era 
in any of the sciences. A physicist said recently: 
“Rapid progress was not characteristic of the lat- 
ter half of the nineteenth century—at least not in 


61T have discussed this fully in An Introduction to the Phi 
losophy of Law, lect. 6, especially 267-284. 


LAW AND MORALS 87 


physics. Fine, solid, dynamical foundations were 
laid, and the edifice of knowledge was consoli- 
dated; but wholly fresh ground was not being 
opened up, and totally new buildings were not 
expected.’’62 

Today we are seeing the beginning of a reac-’ 
tion from the juristic pessimism of the historical 
school and the juristic inertia of the later gener- 
ations of the analytical school. The work of 
systematizing the received body of legal precepts 
and discovering its logical presuppositions by 
analysis has been done. The pressure of new and 
unsecured interests, of new and insistent human 
claims, is compelling us to revise our juristic 
creeds. Projects for “restatement of the law’— 
are in the air. Jurists are becoming more confi- 
dent of the efficacy of intelligent effort to improve 
the law. Already there is a revival of natural’ 
law—not of the natural law that would have im- 
posed upon us an idealized version of the law of 
the past as something from which we might never 
escape, but of a creative natural law that would 
enable us to make of our received legal materials, 
as systematized by the legal science of the last 
century, a living instrument of justice in the so- 
ciety of today and of tomorrow. Such a natural 
law will not call upon us to turn treatises on 


® Lodge, Continuity, 4 (1914). 


88 LAW AND MORALS 


ethics or economics or sociology directly into in- 
stitutes of law. But it will not be content with a 
legal science that refuses to look beyond or be- 
hind formal legal precepts and so misses more 
than half of what goes to make up the law. It 
will not be content to justify legal precepts by an 
ideal form of themselves. It will not be content 
with a jurisprudence that excludes the ends of 
law and criticism of legal precepts with reference 
to those ends. 


Itt 
POhARPHLAOSOPHICAL \Wilb Ww: 


Throughout the nineteenth century philo- 
sophical jurists devoted much of their attention 
to the relation of law to morals, the relation of 
jurisprudence to ethics. For reasons considered 
in a preceding lecture the subject was not con- 
genial to the legal science of the time, which 
sought to be wholly self-sufficient, using its own 
methods exclusively and applying them exclu- 
sively to rigidly defined legal materials. Also 
much of the discussion was none too happy, so 
that Jhering could say that the relation of law to 
morals was the Cape Horn of jurisprudence; the 
juristic navigator who would overcome its perils 
ran no little risk of fatal shipwreck. In English 
and American writing the subject was embar- 
rassed further by the circumstance that the 
arguments were largely taken over from the Ger- 
man metaphysical jurists who used words to 
which our “law” and “morals” by no means ex- 
actly correspond. The Germans were discussing 
the relation of Recht to Sitte; and Recht is more 


1 Geist des réomischen Rechts, II, § 26 (2 ed.) 46. See com- 
ments on this in Ahrens, Naturrecht, (6 ed.) I, 308. 


90 LAW AND MORALS 


’ 


than “law” in our conventional, analytical sense, 
while Sitte implies more than “morals.” Recht is 
“right and law’’—the law looked at not merely as 
courts enforce it, but also with reference to what 
the courts are seeking to attain through the judi- 
cial administration of justice. Sitte means more 
than morals in the sense in which we commonly 
use the term.? It implies habits of mind—those 
principles of conduct in civilized society which 
have become second nature and of which we are 
not always conscious. It might be called ethical 
custom. In other words, the problem which we 
translate as the relation of law to morals was, to 
those who began the discussion and chiefly prose- 
cuted it, this: Is that which the legal order is try- 
ing immediately to attain identical with ethical 
custom or is it something to be differentiated 
from ethical custom and set over against it? It 
is a philosophical version of the problem of the 
relation of law to custom which was debated at 
the same time by analytical and historical jurists. 

As we have seen, philosophy of law begins in 
a stage of legal development in which law is 
relatively undifferentiated from general social 
control; in which law and ethical custom and 


2This is well explained in Haldane, Higher Nationality: A 
Study in Law and Ethics, 38 Rep. Am. Bar Assn., 393, 402-405. 


LAW AND MORALS 91 


traditional customs of popular action and relig- 
ious observance are fused or undifferentiated. 
Philosophy of law begins by attempting to find 
the ideal side, the enduring idea, of social con- 
trol. The philosophy of social control is taken 
up by Roman lawyers in a stage of legal growth, 
after a period of strict law, and becomes philo- 
sophical jurisprudence—an attempt to find the 
ideal side, the enduring idea, of law and of each 
legal rule and institution and doctrine, and thus 
to find an ideal body of law by which to try, and 
from which to eke out, the legal materials handed 
down from the old Roman city-state. This philo- 
sophical jurisprudence is revived and carried 
forward through a rationalist philosophy of law 
in the corresponding stage of development in the 
modern world. Thus, it has its origin in a stage 
in which law, morals, ethical custom and religious 
usage are undifferentiated. It becomes the pre- 
vailing method of the science of law in stages of 
growth in which a large infusion of morals or of 
ethical custom into law is going forward. Hence 
it is invoked at the outset to give a rational 
account of that infusion and does so by assuming 
the ultimate identity of legal rules with moral 
rules. 


92 LAW AND MORALS 


When we add to these circumstances, which 
gave form to philosophical thought about law in 
the periods in which men were using philosophy 
as an everyday instrument of creative legal 
development, the further circumstance that juris- 
prudence had been a part of theology for two 
centuries prior to the Reformation, we may 
understand the fundamental assumptions of the 
classical philosophical jurisprudence of the law- 
of-nature school. We may perceive why juris- 
prudence was regarded as a branch of ethics and 
why legal rules were held only declaratory of 
moral rules. We may see why it was conceived 
that a rule could not be a valid legal rule unless it 
was a moral rule—not merely that it ought not to 
be a legal rule if it ran counter to a moral rule— 
and why it was assumed that moral rules as such 
were legally obligatory. 

Had the seventeenth and eighteenth-century 
jurisprudence urged that positive law got its 
validity from being declaratory of ethical custom 
of the time and place—or perhaps better from 
being declaratory of idealized ethical custom of 
the time and place—it would not. have broken 
down so completely at the end of the eighteenth 
century. But the rationalist philosophy of the 
time was not inclined to so modest a proposition. 


LAW AND MORALS 93 


Moreover the political controversies of the time 
led to a political ethics in which, setting the indi- 
vidual and the state and so the individual and 
society over against one another, the basis of 
political and legal obligation was found in the 
appeal of political institutions and legal precepts 
to the individual conscience as being such as 
would bind an abstract man in a state of perfec- 
tion—such as would bind him as a moral entity 
in a state in which he would claim nothing and 
do nothing that did not comport with ideal moral 
per fection.® 

In juristic practice natural law came to no more ' 
than the more modest conception of an ethically 
idealized law of the time and place or ethically 





8 “Tt is proper to observe in this connection that when we speak 
of the natural state of man we are to understand not only that 
natural and primitive state in which he is placed, as it were, by 
the hands of nature herself, but as well all those into which man 
enters by his own act and agreement, that are on the whole in 
accord with his nature and that contain nothing but what is 
agreeable to his constitution and to the end for which he was 
formed. For since man, as a free and intelligent being, is able 
to see and know his situation and to discover his ultimate end, 
and hence to take the right measures to attain it, in order to 
form a just idea of his natural state, we must consider it in 
this light. That is, to speak generally, the natural state of man 
is that which is conformable to his nature, constitution and rea- 
son, as well as to the good use of his faculties, considered in 
their full maturity and perfection.” Burlamaqui, Principes du 
droit naturel, I, 4, 0. 

‘““Man is a moral person, when looked at as the subject of cer- 
tain duties and certain rights. Hence his state, which is deter- 
mined by duties and rights, is called moral; this state is also 
called natural, where the duties and rights by which it is deter- 
mined are natural or belong to it by the force of the law of 
nature. And therefore in the natural state men are governed 
solely by the law of nature.” Wolff, Institutiones Iuris Naturae 
et Gentium, § 96. 


94 LAW AND MORALS 


idealized Roman law, supplemented by an ethical 
ideal of the end of law. Such was the natural 
law that liberalized the legal materials that had 
come down from the Middle Ages and brought 
the law abreast of morals or ethical custom. But 
the theory went much further, and in the latter 
part of the eighteenth century its implications 
were anti-social. For in effect it made the indi- 
vidual conscience the ultimate arbiter of political 
and legal obligations. Thus Mr. Justice Wilson _ 
says: “No exterior human ee can bind a 
free and independent man.’”® Also: “The con- 
sent of those whose obedience the law requires 

I conceive to be the true origin of the 
obligation of human laws.’  Jefferson’s pro- 
_nouncements to the same effect are well known.’ 
Such a doctrine could be tolerable in practice only 
in a time when absolute theories of morals pre- 
vailed. They assume, indeed, a standard con- 
science—as it were, a conscientious man’s con- 
science, analogous to the prudence of the reason- 
able man in our law of torts. It is not every 


4 Burlamaqui, II, 3, c. 1, § 6; Wolff, § 1069; Vattel, Le droit 
des gens, liv. I, ch. 13, § 159; 1 Blackstone, Commentaries, 41. 


5 Works, (Andrews’ ed.) I, 192. 
eo 88. See also 57, 190, 198. 


E.g., Letter to James Madison, September 6, 1789, Writings 
Grordls ed.) V, 115-124; Letter to Samuel Kerchevall, Td. SWiK YE 
2-45, 


LAW AND MORALS 95 


man’s conscience as his wilful pursuit of the 
desires of the moment makes it appear, but the 
real conscience that he has as a rational moral 
entity, which is the measure of the obligatory 
force of legal rules. 

For example, the “right of revolution” so much 
discussed by eighteenth-century jurists, a princi- 
ple, says Mr. Justice Wilson, which “should be 
taught as a principle of the constitution of the 
United States and of every state in the Union,’ 
can be admitted, as something to be left to the 
conscience of every individual for the occasion 
and the manner of its exercise, only when all 
men or most men are agreed. On a balance of 
the security of social institutions and the indi- 
vidual life it may not be anti-social to overturn 
social institutions that have become anti-social in 
their operation and effect. But here again the 
natural-law theory did not put it so modestly. 
And it was only agreement in looking to some 
ultimate authority for decisive pronouncement on 
the content and application of moral principles 
that made the theory possible. There was a gen- 
eral agreement upon ethical custom. It could be 
assumed that every individual in a homogeneous 
community with a relatively simple economic 


8 Works (Andrews’ ed.) I, 18. 


96 LAW AND MORALS 


organization felt as did his fellows with respect 
to “things that are not done.” If John Doe or 
Richard Roe asserted that their respective con- 
sciences did not dictate or approve the rules 
which the philosophical jurist found in his own 
conscience and attributed to the conscience of 
man in a state of nature, it meant simply that 
John and Richard were ignorant of the dictates 
of their consciences or were misrepresenting 
them. Only in this way could the individualist 
political natural law of the eighteenth century be 
made compatible with the general security.® 

Nor was the classical natural-law theory less 
vulnerable on its juristic than on its political side. 
It came practically to this, that each philosophical 
jurist made his personal ethical views the test of 
the validity of legal precepts and the pattern for 
new precepts or for new shapings of old ones. 
So long as men were agreed as to the main fea- 
tures of ethical custom, this mode of thought was 
a powerful agency of growth. It led each jurist 
to work out ideal standards to serve as a critique 
of the traditional law in every detail. It led to 
many a bold stroke for judicial improvement of 
the common law and not the least to the enlight- 
ened creative decisions of Lord Mansfield and 





®See Brown, Underlying Principles of Modern Legislation, 
7 ff.; Ritchie, Natural Rights, 65 ff. 


LAW AND MORALS 97 


his colleagues. And yet it had too much of the 
personal in it, in action, to survive the shocks of 
the end of the century when it appeared that men 
were by no means all agreed upon ethical princi- 
ples or ethical custom, and natural-law theories, 
applied to political and legal institutions in paper 
constitutions and codes drawn up as if there had 
been no legal past, threatened what might be 
called institutional waste.1° 

In the hands of Pothier natural law was of 
much service to the modern law of Continental 
Europe in leading him to lay down that deliber- 
ate promises, being morally binding, were legally 
binding, although they did not come within the 
Roman categories of contract, since the Roman 
categories were arbitrary and remote from natu- 
ral simplicity.14_ It rendered notable service in 


10 “But one of the first and most leading principles on which 
the commonwealth and the laws are consecrated, is lest the tempo- 
rary possessors and life-renters in it, unmindful of what they 
have received from their ancestors, or of what is due to their pos- 
terity, should act as if they were the entire masters; that they 
should not think it amongst their rights to cut off the entail or 
commit waste on the inheritance, by destroying at their pleasure 
the whole original fabric of their society; hazarding to leave to 
those who come after them a ruin instead of a habitation, and 
teaching these successors as little to respect their contrivances as 
they had themselves respected the institutions of their fore- 
fathers.’”? Burke, Reflections on the Revolution in France, Works, 
(1839 ed.) III, 118. See also 110-111, 118-121. 


11“*That kind of agreement the object of which is the formation 
of an engagement is called a contract. The principles of the 
Roman law as to the different kinds of agreements, and the dis- 
tinction between contracts and simple agreements, not being 
founded on the law of nature, and being indeed very remote 
from simplicity, are not admitted into our law.” Traité des obli- 
gations, pt. I, ch. 1, sect. 1, art. 1, § 1, Oeuvres (3 ed.) II, 4. 


98 LAW AND MORALS 


the hands of Lord Mansfield leading him in com- 
merciai* cases, instead of leaving each case to a 
jury to decide upon the fact of commercial cus- 
tom, to study “to find some general principle, 
which shall be known to all mankind, not only to 
rule the particular case then under consideration, 
but to serve as a guide for the future.” 12 On the 
other hand, it led to ignorings of the history of 
legal precepts by the codifiers with resulting 
exhibitions of mistaken legislative zeal that pre- 
judiced jurists against codes for nearly a cen- 
tury.4% Its possibilities in the hands of lawyers 
of lesser magnitude are illustrated in the New 
York Journeymen Cordwainers’ Case in which, in 
a prosecution for a common-law misdemeanor, it 
was argued that the common-law doctrine did not 
obtain in America, since “whether it is not an 
attack upon the rights of man is . . . more 
fitting to be inquired into than whether or not it 
is conformable to the usages of Picts, Romans, 
Britons, Danes, Jutes, Angles, Saxons, Normans, 
or other barbarians who lived in the night of 
human intelligence.” +4 


12 Buller, J., in Lickbarrow v. Mason, 2 T. R. 63, 73. 

See Savigny, Vom Beruf unsrer Zeit fiir Gesetzgebung und 
Rechtswissenschaft (3 ed.) 32-151; Savigny, System des pt dS 
ramischen Rechts, II, § 75 (Rattigan’s transl. Savigny, Jural 
Relations, 111-119); Austin, Jurisprudence, (4 ed.) II, 689-697. 


14 Yates’ Select Cases, 111, 156. 


LAW AND MORALS 99 


Bentham pointed out the weak point in the 
classical natural law in a famous passage. Speak- 
ing of the various proposed criteria for distin- 
guishing between right and wrong, he says they 
“consist in so many contrivances for avoiding 
the obligation of appealing to any external 
standard and of prevailing upon the reader to 
accept of the author’s sentiment or opinion as a 
reason for itself.” He then discusses eight of 
these “contrivances” and adds: ‘““The fairest and 
openest of them all is that sort of man who 
speaks out and says, I am of the number of the 
elect; now God himself takes care to inform the 
elect what is right, and that with so good effect 

they cannot help . . . knowing it. 
If, therefore, a man wants to know what 
is right he has nothing to do but to come to me.”’?® 

A few examples will show that Bentham’s 
statement is not in the least overdrawn. An 
American judge, expounding natural limitations 
upon lawmaking said that “no court 
would hesitate to declare void a statute which 
enacted that A and B, who were husband and 
wife to each other, should be so no longer, but 
that A should thereafter be the husband of C, 


8 Principles of Morals and Legislation (Clarendon Press re- 
print), note on pp. 17-20. 


100 LAW AND MORALS 


and B the wife of D.’!6 On the other hand, 
Lord Holt, approving the doctrine of Coke that 
“when an act of Parliament is against common 
right and reason . . . the common law will 
control it and adjudge such act to be void,” says 
that Parliament may not make adultery lawful 
but that it may enact that B shall no longer be 
the wife of A but shall instead be the wife of C.1" 
What this means is that the American judge took 
our state constitutional provisions as to the sepa- 
ration of powers, and consequent prohibitions of 
legislative divorce, to be declaratory of natural 
law, while the English judge was familiar with 
parliamentary divorce as an everyday matter and 
hence assumed that the natural-law limitation 
upon legislative action did not extend thereto. 
Again, in Dred Scott v. Sanford, assuming 
apparently that Lord Mansfield’s statement of 
English law of the last half of the eighteenth 
century!’ was declaratory of natural law, Mr. 
Justice Curtis asserts dogmatically that slavery 
cannot exist except as a creature of municipal 
law, and adds that such is the opinion of all 


16 Miller, J., in Loan Ass’n. v. Topeka, 20 Wall. 655, 662-663. 
17 City of London v. Wood, 12 Mod. 669, 687-688. 


18 “The state of slavery is of such a nature that it is incapable 
of being introduced on any reasons, moral or political, but only 
by positive law, which preserves its force long after the reasons, 
occasion and time itself, from whence it was created, is erased 
from memory.” 20 State Trials, 1, 82. 


LAW AND MORALS 10} 


writers.19 Yet Aristotle,2° Grotius?! and Ruth- 
erforth,?? no mean authorities upon natural law, 
make elaborate arguments to prove that in certain 
cases slavery may have a natural foundation. 
Natural law of the eighteenth-century kind did 
not need to trouble about authorities. The 
author’s reason and conscience could tell him 
what was natural law and no rational authority 
could conceivably disagree. One cannot but see 
that the circumstance that the one wrote where 
slavery had long ceased to exist, while the others 
were familiar with it as an institution, had 
decisive effect upon the dictates of reason. 

An eighteenth-century jurist laying down natu- 
ral law and Bentham’s man who claimed to be 
one of the elect are in the same position. Each is 
giving us his personal views and is assuming that 


1 “Slavery, being contrary to natural right, is created only by 
municipal law. This is not only plain in itself, and agreed by all 
writers on the subject, but is inferable from the constitution and 
has been explicitly declared by this court.’? Dred Scott v. Sand- 
ford, 19 How. 393, 624. 

20 “But is there any one thus intended by nature to be a slave, 
and for whom such a condition is expedient and right, or rather 
is not all slavery a violation of nature? There is no difficulty in 
answering this question, on grounds both of reason and of fact. 
For that some should rule, and others be ruled, is a thing not 
only necessary but expedient; from the hour of their birth, some 
are marked out for subjection, others for rule. . Set tsis 
clear, then, that some men are by nature free, and others slaves, 
and that for these latter slavery is both expedient and right.” 
Politics, i, ch. 5 (Jowett’s transl. I, 7-8). 

po lvemaeneevers ac pacts; Ve 5, 27 enSan2 551 29. o8in 1-2: 
Whewell’s transl. I, 333-334, 335-336 

2 Institutes of Natural Law, I, 20, § 4. 


102 LAW AND MORALS 


those views must be binding upon everyone else. 
When and where absolute theories of morals pre- 
vail, upon the main features of which all or 
substantially all are agreed, a jurist may use the 
generally accepted picture of what is right as a 
pattern for constructive work upon legal ma- 
terials. From such a source authoritative natural 
law may be drawn in any quantity without im- 
pairing the general security. Under such circum- 
Stances it is possible to realize Bentham’s man 
who was one of the elect. But when absolute 
theories have been discarded and no authorities 
are recognized universally, and especially when 
classes with divergent claims and desires hold 
diverse views on fundamental points, natural law 
in the eighteenth-century sense would make every 
.man a law unto himself. The application of 
natural-law theories by revolutionary France 
made men conscious of this and led Burke in 
politics,22 Cuoco in political history,24 and 
Savigny in jurisprudence?® to break with the 
philosophical method of the past two centuries 
and found the historical political science and his- 


®3 See Laski, English Political Thought from Locke to Bentham, 
243-256; Braune, Edmund Burke in Deutschland. 

*4 Saggio storico, §§ 1-7 (1800). See Croce, Storia della 
storiografia Italiana nel secolo decimomono, I, 11. 

5 See Pound, Interpretations of Legal History, 12-14. Compare 
the attitude of Maine toward these same ideas as urged by the 
neo-Rousseauists, Popular Government, (American ed.) 154-162. 


LAW AND MORALS 103 


torical jurisprudence of the nineteenth century. 
Also the nineteenth century philosophical, or, as 
we may call them, metaphysical, jurists sought to 
ground natural law upon some fundamental con- 
ception, given us independently and having an 
absolute and universal validity. 

As a result for about one hundred years phi- 
losophers and philosophical jurists, instead of 
conceiving of legal precepts as declaring and 
promulgating moral principles, sought to set 
apart and to contrast the legal and the moral. 

Kant, whose influence upon the analytical 
jurists was remarked in the preceding lecture, 
began by saying that man, in endeavoring to bring 
his animal self and his rational self into harmony, 
was presented to himself in two aspects, an inner 
and an outer. Hence his acts have a twofold 
aspect. On the one hand, they are external mani- 
festations of his will. On the other hand, they 
are determinations of his will by motives. On 
the one hand, he is in relation to other beings 
like himself and to things external. On the other 
hand he is, as it were, alone with himself. The 
law has to do with his acts in the one aspect. 
Morals have to do with them in the other aspect. 
The problem of the law is to keep conscious free- 
willing beings from interference with each other. 


104 LAW AND MORALS 


It is so to order them that each shall exercise his 
freedom in a way consistent with the freedom of 
all others, since all others are to be regarded 
equally as ends in themselves. But law has to do 
with outward acts. Hence it reaches no further 
than the possibility of outward compulsion. Ina 
legal sense there is a right only to the extent that 
others may be compelled to respect it.?° 

To quote Kant’s own words: “When it is said 
that a creditor has the right to exact payment 
from his debtor, it does not mean that he may 
put it to the debtor’s conscience that the latter 
ought to pay. It means that in such a case pay- 
ment may be compelled consistently with the 
freedom of everyone and hence consistently with 
the debtor’s own freedom, according to a uni- 
versal law.”27 And this may happen sometimes 
even though from the internal aspect of demand- 
ing performance one ought not to do so. One 
example which he discusses is suggestive. There 
was a much-controverted text in the Prussian 
Code of Frederick the Great dealing with the 
case where changes in the monetary system had 
taken place between the creation and the maturity 
of a debt. Was payment to be made according 


26 Metaphysische Anfangsgriinde der Rechtslehre, Intr. §§ B-D. 
See Caird, The Critical Philosophy of Kant, II, 294-300. 


*7 Metaphysische Anfangsgriinde der Rechtslehre, (2 ed.) xxxvi. 


LAW AND MORALS 105 


to the current value or the metallic value or the 
nominal value ?28 Kant answers, from the stand- 
point of the correspondence of claim to compel 
with right: “When the currency in which it is 
covenanted that a debt should be paid has become 
depreciated in the interval between the covenant 
and the payment, the creditor may have an equita- 
ble claim to be reimbursed; but it is impossible 
that a judge should enforce it, seeing the creditor 
has got that for which he bargained and nothing 
was said in the contract of such a contingency.’’?® 
Thus there is an equitable or moral claim which 
is not a right from the standpoint of an ideal legal 
order. Kant’s solution is much in the spirit of 
the strict law and hence of the maturity of law, 
which has many affinities thereto. It is note- 
worthy that Anglo-American equity, which in 
spite of nineteenth-century attempts to system- 
atize it to the pattern of the strict law, has pre- 
served much of the spirit of seventeenth-century 
identification of law and morals, refuses to en- 
force hard bargains where they have become hard 
because of unforeseen changes in the value of 
money.®° Kant’s solution accords with the result 


28 Savigny, Obligationenrecht, § 46. Brown, Epitome and 
Analysis of Savigny on Obligations, 81-82. 

29 Metaphysische Anfangsgriinde der Rechtslehre, (2 ed.) xxxix- 
xl. I have quoted Caird’s paraphrase-translation, Critical Phi- 
losophy of Kant, II, 299, 

30 Willard v. Tayloe, 8 Wall. 557. 


106 LAW AND MORALS 


generally reached by legal systems today. Indeed, 
in American law although the creditor cannot 
enforce specific performance in such a case, he 
can recover the value of his bargain in an action 
at law.8! Hence all that is achieved by the refusal 
of equity to interfere is that the creditor is left 
to what is often a much less adequate remedy. 
The chancellor washes his hands of the matter 
and says, “go to a court of law where they are 
more callous.” 

In Kant’s theory law and morals are distin- 
guished. Indeed long before him Thomasius had 
begun to insist on the distinction, coincident with 
the legislative movement and codifying tendency 
that led to an idea of positive law as an authorita- 
tively imposed declaration of natural law by a 
superior reason, and hence to an imperative 
theory of its obligation.?? In the maturity of law 
in the nineteenth century the same circumstances 
that led analytical jurists to adopt this distinction 
between law and morals and to carry it still 
further, led to philosophical attempts to express 
the relation of law and morals by contrasting 
them. Thus Hegel represents the relation as an 


31 Such is the prevailing doctrine in the United States. For the 
different rules see 3 Sedgwick, Damages (9 ed.) §§ 1001-1012. 

2h undamenta iar naturae a gentium, I, 1, 6, $§ 3, 32-43, 
64-66, 74-75, I, 1 §§ 89- Ae 1; 2-508 47; Institutiones juris 
prudentiae divinae % ed.) I Ane §§ 63-100. 


LAW AND MORALS 107 


antithesis. Right, that is, that which we seek to 
attain through law, is the possibility of liberty. 
Morals determine not what is possible but what 
ought to be. Hence law and morals are in con- 
trast to each other as the possible (i.e., possible 
of external realization) and the internally obliga- 
tory.33 Ahrens contrasts them also. Both are - 
deductions from a fundamental conception of 
right or of justice, but they differ in that in the 
case of morals our deductions give us a subjective 
science while in law they give us an objective 
science. In morals our deductions are with refer- 
ence to the motives of conduct; in law they are 
with reference to the outward results of conduct. 
The spheres are different and in consequence the 
content of the two spheres may well be different 
likewise.3# . 

In the latter part of the nineteenth century, as 
individualistic theories, proceeding on the ulti- 
mate datum of the free-willing conscious indi- 
vidual, begin to give way to theories which pro- 
ceed not upon a first principle of individual inde- 
pendence but upon the basis of the social interde- 


83 Grundlinien der Philosophie des Rechts, $$ 104-114. See 
Reyburn, Hegel’s Ethical Theory, 118-121; Wallace, Hegel’s 
Philosophy of Mind, 21-23 

84 Cours de droit TS} oA ae I, § 21. As to the relation 
of this to Krause, see Id. 78- 


108 LAW AND MORALS 


pendence of men, attempts to contrast law and 
morals are given up and we come upon a new 
| phase of attempts to subordinate law to morals. 

Toward the end of the nineteenth century a 
new movement became manifest in law and in 
the science of law. Faith in the spontaneous 
development of legal institutions began to give 
way to faith in the efficacy of effort to make or to 
shape the law to known ends. A tendency arose 
to direct legal as well as political institutions con- 
sciously to the furtherance of general human 
ends, instead of restricting their operation to a 
few supposedly paramount ends. In particular, 
whereas the immediate past had put the whole 
emphasis upon the general security, greater 
weight began to be given to the individual human 
life. Just as the maturity of law reverted in some 
measure to the spirit and the ideas of the strict 
law, this new tendency began to have much in 
common with the stage of. infusion of lay moral 
ideas into law which may be called the stage of 
equity and natural law. In jurisprudence it was 
manifest first in a better understanding of the 
relation of legal rights to so-called natural rights. 
It came to be seen that the ultimate thing was the 
claim or demand or desire of a human being ; that 


LAW AND MORALS 109 


out of all such de facto claims or demands or 
desires some were recognized by ethical customs, 
some were recognized by moralists and jurists as 
reasonable and were called natural rights, and 
some were recognized and delimited by law and 
as so delimited were given effect by legal rights. 
In legislation and judicial decision it has been 
manifest in a steady movement since the end of 
the last century in quite another direction from 
that taken in what I have called the maturity of 
law. Emphasis has been transferring from indi- 
vidual interests to social interests. Satisfaction 
of human wants has been the watchword rather 
than general security. Instead of setting law off 
from all other social institutions we have been 
coordinating it with them in an endeavor through 
all of them to satisfy as much of human wants 
as we may with the least sacrifice.®® 

Along with this movement there has gone a’ 
revival of philosophy of law, through the rise of 
a social philosophical school of many types in 
place of the metaphysical school of the last cen- 


35 T have considered this movement at large on other occasions: 
The Scope and Purpose of Sociological Jurisprudence, 35 Harvard 
Law Rev. 489, 506-516; The End of Law as Developed in Legal 
Rules and Doctrines, 27 Harvard Law Rev. 195, 225-234; The 
Spirit of the Common Law, lect. 8. See also Ehrlich, Grundle- 
gung der Soziologie des Rechts, chaps. 9-10, 


— 


110 LAW AND MORALS 


tury. And one feature of this revival has been 
new theories of legal precepts as having for their 


end the realization of moral rules, and in conse- 


quence a revival of the old subordination of 


jurisprudence to ethics. 


As far back as 1878 Jellinek made the transi- 
tion from a contrasting of law and morals to a 
subsuming of the former under the latter. Law, 


he said, was a minimum ethics. That is, the field 


of law was that part of the requirements of 
morals observance whereof is absolutely indis- 
pensable in the given stage of social development. 
By “law” here (Recht) he meant law as what 
we try to make it or in its idea: for the actual 
body of legal precepts may fall short of or in 
places or at times may go beyond this ethical 


minimum. So regarded, law is only a part of 


morals—i. e., the field of law is only a part of the 
field of ethical custom—namely, the part which 
has to do with the indispensable conditions of the 
social order. In the broader sense, morals include 
the whole. But in the narrower sense, as distin- 
guished from law, they include only the excess 
beyond the indispensable minimum. This excess, 
which is desirable but not indispensable, he terms 
“an ethical luxury.” The minimum represents 


LAW AND MORALS 111 


what we may expect to give effect through legal 
precepts.°® Law and morals are contrasted and 
yet in a broader sense morals are made to em- 
brace the whole. This is significant. In other 
respects the theory has characteristic features of 
the nineteenth century. For example, it assumes 
that the scope of the law is to be held down to 
the smallest area possible. This is a legacy of 
the metaphysical jurisprudence which derived 
everything from the free will. Regarded as a 
systematic restriction of freedom in the interest 
of a maximum of individual free self-assertion, 
law was necessary and yet in some sort an evil. 
It was to be scrutinized jealously and was not to 
be suffered to extend itself beyond what was 
obviously necessary.2* The chief value of Jel- 
linek’s work was in directing our attention to the 
psychological limitations upon effective legal ac- 


36 Die sozialethische Bedeutung von Recht, Unrecht und Strafe, 
chap. 2. Demogue, Les notions fondamentales du droit privé, 
13 ff. ‘The endeavor to find any other difference between law 
and morals, and especially between customary law and ethical 
custom, than a higher or lesser importance for the ordering of 
the common life, has not thus far proved successful.” Radbruch, 
Einfiihrung in die Rechtswissenschaft, 11-12. 

37 “Reduced to these terms the difference between morality and 
right (i.e., diritto—right plus law) is a difference in degree and 
not of essence. Yet it is a very important difference, as it re- 
duces the power of coercion to what is absolutely necessary for 
the harmonious coexistence of the individual with the whole.” 
Lioy, Philosophy of Right, (transl. by Hastie) I, 121. 


112 LAW AND MORALS 


tion which often may preclude us from achieving 
by legal machinery and legal sanctions what on 
moral grounds we are moved to attempt.*§ 

In one form or another a tendency to subordi- 
nate philosophical jurisprudence to ethics appears 
in all the types of the social philosophical school. 
As the social utilitarians put it, the immediate 
end of law is to secure interests, that is, to secure 
human claims or demands. Accordingly, we 
must choose which we shall recognize, must fix 
the limits within which we shall recognize them, 
and must weigh or evaluate conflicting or over- 
lapping interests in order to secure as much as 
we may with the least sacrifice. In making this 
choice and in weighing or evaluating interests, 
whether in legislation or judicial decision or 
juristic writing, whether we do it by lawmaking 
or in the application of law, we must turn to 
sethics for principles. Morals is an evaluation of 
interests ; law is or at least seeks to be a delimita- 
tion in accordance therewith.2® Thus we are 


38 Allgemeine Staatslehre (2 ed.) 89 ff., 324 ff. ‘“‘Law is too 
costly to be used to enforce the whole moral law.’”’ Parsons, 
Legal Doctrine and Social Progress, 19. 


® Korkunov, General Theory of Law (transl. by Hastings) 52. 
“The idea of value is, therefore, the basal conception of ethics. 
No other term, such as duty, law, or right, is final for thought; 
each logically demands the idea of value as the foundation upon 
which it finally rests. One may ask, when facing some apparent 
claim of morality, ‘why is this my duty, why must I obey this 
law, or why regard this course of action as right?’ The answer 
to any of these questions consists in showing that the require- 


LAW AND MORALS 113 


brought back in substance to a conception of 


jurisprudence as on one side a branch of applied — 


ethics. 


As the leader of the Neo-Kantians put it, we’ 


’ 


seek justice through law. But to attain justice, 


through law we must formulate the ideals of the 
epoch. Even if we cannot formulate social and 
political and jural ideals so as to fix the details 
or at least the main lines of an immutable natural 
law that shall stand fast forever, we may make 
the legal administration of justice advance and 
give effect to the ideals of the time and place. 


Thus we may at least have a natural law with a 


growing content—an idealized ethical custom and 
-an ideal picture of the end of law, painted, it 
may be, with reference to the institutions and 
ethical custom of the time and place, which may 
serve as an instrument of shaping and developing 
legal materials and of drawing in and fashioning 
materials from outside of the law.*® But these 





ments of duty, law, and right tend in each case to promote 
human welfare, to yield what men do actually find to be of 
value.’’ Everett, Moral Values, 7. 


40 “‘Frence the old jurists were wrong when they sought for a 
determinate law of absolute significance. But they would have 
been on firm ground if they had striven for a natural law with 
changing content—that is, precepts of right and law which con- 
tain a theoretically just law under relations empirically condi- 
tioned.” Stammler, Wirthschaft und Recht, (2 ed.) 181. See 
Stammler,~Lehre von dem richtigen Rechte, 116-121; Charmont, 
La renaissance du droit naturel, chap. 9 (Modern French Legal 
Philosophy, 106-111); Saleilles, L’école historique et droit naturel, 
Revue trimestrielle de droit civil, I, 80, 98; Demogue, Notions 


fondamentales du droit privé, 22. *e 


114 LAW AND MORALS 


ideals are developed outside of the law. They are 

_moral ideals. And so jurisprudence is subordi- 
nated to ethics, in so far as ethics has to do with 
these goals which we seek to attain and with 
reference whereto we measure legal precepts and 
doctrines and institutions, in the endeavor to 
make them agencies of progress toward these 
goals, while jurisprudence has to do rather with 
the means of attaining them. 

As the leader of the Neo-Hegelians put it, gov- 
ernment, law, and morals in the sense of ethical 
custom, are factors toward the attainment of an 
ideal of civilization. So, he tells us, jurispru- 
dence must appreciate the ideal ends toward 
which society strives.4! Perhaps he alone of the 
leaders of recent philosophical jurisprudence did 
not more or less avowedly go back in some degree 
to the subordination of jurisprudence to ethics. 
His view was evolutionary. Law and morals ex- 
press and also further a progressive civilization.*” 
Hence jurisprudence and ethics are both subordi- 
nated to a universal history of civilization from 
which we determine the course of development of 
civilization, and to a philosophy of right and of 
economics from which we determine the jural 


41 Moderne Rechtsprobleme, §§ 1-7; Rechtsphilosophie und Uni- 
versalrechtsgeschichte, § 9. 


“@ Kohler, Lehrbuch der Rechtsphilosophie, 2. 


LAW AND MORALS 115 


postulates of the civilization of the time and 
place.48 More than one recent book on ethics, 
however, presupposes very nearly what he called 
for, and the result in practice is to make juris- 
prudence more or less dependent on a science 
which a type of modern ethical philosophers 
would be likely to claim as theirs. 

If we review the course of development of 
legal philosophical theory as to law and morals 
in connection with the development of legal pre- 
cepts and legal institutions, we shall see at once 
that the philosophical theories bear a close rela- 
tion to the actual legal phenomena of the time 
and place. Indeed they are little more than at- 
tempts to give a rational account of the problems 
of the legal order in different stages of develop- 
ment, and of the means by which those problems 
are solving. In the first stage law and morals are- 
largely undifferentiated, and we get theories of 
the just by nature and the just by convention as 
explanations of local variations of ethical custom 
and law. In the stage of the strict law the legal 
precepts are self-sufficient and nothing of conse- 
quence is taken over from without. Morals are 
ignored and philosophy is called on to do no more 
than to provide or to bolster up an authoritative 


Ibid, Rechtsphilosophie und Universalrechtsgeschichte, § 2 


116 LAW AND MORALS 


foundation. In the stage of equity or natural law 
the received body of legal precepts is no longer 
self-sufficient. The pressure of unsecured inter- 
ests and of ignored ethical custom leads to a large 
infusion of moral ideas from without. Hence 
for a time morals are chiefly regarded, and philo- 
sophical jurists think of legal rules as one sort 
of moral rules and subordinate jurisprudence to 
ethics. When the infusion is complete and the 
pressure has abated so that the task for a time is 
one of assimilation and systematization of what 
has been taken over, questions of morals seem to 
be only for the legislator, in the exceptional cases 
where his intervention is required, and so law and 
morals, jurisprudence and ethics, are coordinated 
or contrasted. Finally in the beginning of a new 
stage of growth, when unsecured interests and 
ignored ethical custom press once more, the 
philosophical jurist, called on to give a rational 
account of creative juristic activity to secure. 
those interests and make materials of ethical cus- 
tom and ethical speculation into legal materials, 
turns back to the subordination of jurisprudence 
to ethics and gives us new versions thereof.*4 


44 A like movement is observable in politics: “There gradually 
developed from this idea (Jhering’s making interests the crucial 
point rather than will) the important principle that the law dis- 
closes a judgment of value concerning interests, that in this 
judgment the moral nature of man is expressed, and that, as a 


LAW AND MORALS 117 


Perhaps what the new tendency comes to is this: 
Jurisprudence and legislation may not be sepa- 
rated by any hard and fast line and both pre- 
suppose political and social ethics. | 


“ 


We have now completed a survey of the three 
ways of looking at the relation of law and morals 
which obtained in the last century. We have 
traced the pedigree of each. We have seen the 
connection of each with the problems of some 
particular stage of legal development and how the 
hypothesis that was first used for a philosophical 
solution has changed its content continually in the 
long history of discussion of this subject, as the 
phenomena changed which philosophers were 
called on to explain, and yet has retained in sub- 
stance the same name throughout. We have seen 
that no theory has been able to maintain itself, 
so that after twenty-four hundred years of philo- 
sophical and juristic discussion we are substanti- 
ally where we began. If we said that to the’ 
analytical jurist law was law by enactment, that 
to the historical jurist it was law by convention, 
and that to the philosophical jurist it was law by 
nature, we should do the cardinal juristic doc- 


consequence, lawmaking is not primarily a juridical but an 
ethical process.’”? Krabbe, The Modern Idea of the State (transl. 
by Sabine and Shepard) 133. Hobhouse, Elements of Social 
Justice, subordinates politics to ethics. 


118 LAW AND MORALS 


trines of the last century no injustice and should 
be putting them in terms that would be entirely 
intelligible to a Greek philosopher. Moreover, he 
would perceive that we were still debating the 
questions he debated and that at bottom we had 
made little progress with them. Even the en- 
deavor of the mechanical sociologists to put the 
matter wholly in terms of ethical custom would 
seem to him, and seem rightly, but a way of say- 
ing that law was law by convention. 

If, then, this protracted discussion appears to 
have achieved no more than to demonstrate the 
power of Greek thought to penetrate to the root 
of a subject and grasp its fundamental difficul- 
ties, must we not conclude that we have been 
pursuing a wrong method? May we expect to 
understand social control or law as an agency of 
social control by putting a question as to some 
single simple relation and giving a single simple 
answer? Social, and hence legal, phenomena do 
not admit of simple explanations. Except for con- 
venience of exposition, there are no such ana- 
lytical lines as we have been seeking so persist- 
ently to draw. Except for pedagogic purposes it 
is impossible to lay out separate social sciences 
with exactly limited frontiers, with customs 
guards along the frontiers to prevent smuggling 


LAW AND MORALS 119 


of ideas across the lines, and standing armies to 
defend against invasion of the territory of one 
by another. Indeed one may suspect that the 
exigencies of academic teaching do not demand 
such limitations and that an academic predisposi- 
tion to schematism is in part responsible. At any 
rate, these academic schematic layings out of the 
field of the social sciences eliminate too much of 
the whole and too much of each definite area 
which they set off from the whole. Even in such 
a matter as the relation of law and morals, the 
mere statement of the problem in this way elimi- 
nates too much. 

If we look at the details of our own Anglo- 
American legal system with respect to their ori- 
gin, we shall find that some rules and some prin- 
ciples were borrowed at one time or another from 
the Roman law, under a theory that Roman law 
had universal authority, or later under a theory 
that Roman law was embodied reason. But of 
these borrowed precepts, we shall find that some 
were traditional in Roman administration of jus- 
tice, some were Roman scientific juristic general- 
izations, some were Greek philosophical specula- 
tions taken over by Roman jurists and applied to 
legal problems. We shall find other precepts were 
borrowed or assimilated from the canon law, and 


120 LAW AND MORALS 


these again will be found to have diverse or com- 
posite ‘origins. Roman law, texts of the Bible, 
writings of the fathers of the church and Ger- 
manic customary law contributed in varying pro- 
portions to precepts of the canon law which are 
now made into the body of American law. We 
shall find other precepts made by applying ana- 
logies of feudal society. Thus our whole mode 
of thought in terms of relation rather than of 
will, which differentiates Anglo-American law 
from the law of Continental Europe, is due to 
judicial treatment of all manner of questions, at 
the time when the common law was formative, 
on the analogy of the most conspicuous institu- 
tion of that time, namely, the feudal relation of 
lord and man. Likewise the analogy of joint 
tenants of land fixed our ideas as to plurality of 
debtors and of creditors and makes us look at 
that situation very differently from Continental 
Europe, where the legal conception thereof goes 
back to the analogy of an undivided inheritance. 

Pursuing our investigation, we shall find rules 
and institutions that are derived from Germanic 
customary law. We shall find other precepts and 
doctrines which are but judicial adaptations of 
medieval scholastic subtleties. We shall find 
sometimes judicial adoptions and technical work- 


LAW AND MORALS 121 


ings over of customs of popular action, as in 
American mining law. We shall find a certain 
amount of adaptation of ethical custom. We shall 
find many precepts and doctrines which have their 
origin in reasoned systematic deductions of a 
technical legal science. For instance, in American 
procedure, we shall find the courts setting up a 
system of actions ex contractu and actions ex 
delicto, actions known neither to the common law 
nor to the codes of procedure, on the basis of a 
“natural” system of common-law actions worked 
out by text writers for convenience of exposi- 
tion.4®. We shall find philosophical pictures of 
an ideal social order, as in American applications 
of the doctrine that the common law is in force 
only so far as “applicable.” We shall find prin- 
ciples of abstract ethical speculation transformed 
into legal precepts, as in the case of more than 
one ultra-ethical doctrine of equity. We shall 
find scientific economic ideas used to fill out the 
content of abstract legal formulas, as when Mr. 
Justice Field, in applying the Fourteenth Amend- 
ment, turned to Adam Smith and thus gave us 
the conception of a legal right to pursue a natu- 
rally lawful calling, with a content derived from 


45 See Bliss, Code Pleading, § 9; Supervisors v. Decker, 30 
Wis. 624; Scott, Progress of the Law—Civil Procedure, 33 Har- 
vard Law Rev. 236, 240-242. 


122 LAW AND MORALS 


classical political economy.**® We shall find scien- 
tific political ideas used in the same way in many 
legal precepts involving the idea of “sovereignty.” 
Scientific academic technique and traditional pro- 
fessional technique will account for much. Ethi- 
cal philosophy, economic theory and _ political 
ideas, both directly and indirectly in that com- 
pound which we call “public opinion,” will 
account for much more. 

When so many heterogeneous elements enter 
into the discovering and making and shaping and 
applying of legal precepts, and thus enter into 
the very legal materials themselves, we cannot 
bring the matter down to anything so simple as 
the relation of law and morals. 

In general law cannot depart far from ethical 
custom nor lag far behind it. For law does not 
enforce itself. Its machinery must be set in 
motion and kept in motion and guided in its 
motion by individual human beings; and there 
must be something more than the abstract con- 
tent of the legal precept to move these human 
beings to act and to direct their action. Yet one 
need but look at a mass of legal precepts that 
make up the bulk of legal systems today in order 
to see that they are anything but authoritative 


4% Butchers’ Union Co. v. Crescent City Co., 111 U. S. 746, 
756-757. 


LAW AND MORALS 123 


promulgations of ethical custom. For the most 
part they represent juristic or judicial search for 
a rule that will follow logically from the tradi- 
tional legal materials, or for a rule that may be 
said to have authority behind it. They are tech- 
nical workings over of the traditional precepts, 
or technical adaptations of authoritative extra- 
legal propositions. They are the technical, scien- 
tific custom of the courts and lawyers. 

While jurists have been arguing the relation of 
jurisprudence and ethics, others have been urging 
upon them the relation of jurisprudence and eco- 
nomics, the relation of jurisprudence and politics 
and the relation of jurisprudence and sociology. 
Indeed one could say on each of these subjects 
much that has been said as to law and morals 
and could reach much the same result. Juris- 
prudence, ethics, economics, politics, and soci- 
ology are distinct enough at the core, but shade 


out into each other. When we look at the core; 


or chiefly at the core, the analytical distinctions 
are sound enough. But we shall not understand 
even that core, and much less the debatable 
ground beyond, unless we are prepared to make 
continual deep incursions from each into each of 
the others. All the social sciences must be co- 
workers, and emphatically all must be co-workers 


Bae 


124 LAW AND MORALS 


‘with jurisprudence. When we set off a bit of 
social control and define its bounds by analytical 
criteria and essay to study it by its own light and 
with its own materials and its own methods 
exclusively, our results, however logical in ap- 
pearance, are as arbitrary and as futile for any 
but theoretical purposes, as the division of the 
body of the defaulting debtor among his co-cred- 
itors in primitive law. The whole body could not 
be held by each; therefore a surgical operation 
was required to divide it among them. 


BIBLIOGRAPHY 
I 


HISTORICAL 


Bergbohm, Jurisprudenz und Rechtsphilosophie, 
1892. pp. 251-276, 443. 


An account and critique of various modern ethical sys- 
tems of natural law. 


Carter, Law; Its Origin, Growth and Function, 
1907. Lects. 5, 6. 


“Law begins as the product of the automatic action of 
society, and becomes in time a cause of the continued 
growth and perfection of society. Society cannot exist 


without it, or exist without producing it. . . . Law, 
therefore, is self-created and self-existent,” 129, 
“Customs . . . being common modes of action, are 


the unerring evidence of common thought and belief, 
and as they are the joint product of the thoughts of 
all, each one has his own share in forming them. In 
the enforcement of a rule thus formed no one can com- 
plain, for it is the only rule which can be framed which 
gives equal expression to the voice of each. It restrains 
only so far as all agree that restraint is necessary. It is 
the reign of liberty, for it gives to each individual the 
largest possible area in which he can move and act with 
unrestricted freedom.” 143, 


Clark, Practical Jurisprudence, 1883. pp. 188- 
195. 


126 LAW AND MORALS 


Clark, Roman Private Law: Jurisprudence, 1914. 
I, 22-23, 93-146 (§ 3). 


A critique of Austin from the standpoint of historical 


jurisprudence. 


Holmes, The Common Law, 1881. Lect. 4. 

Holmes, Collected Papers, 1920. pp. 168-179 
(reprint of an address written in 1897). 

Jenks, Law and Politics in the Middle Ages, 1898. 
Chap. 8. 

Jhering, Geist des rémischen Rechts, (5 ed.) 
1894. II, § 26. 


Brings out the sharp line between law and morals in 
the strict law. 


Lightwood, The Nature of Positive Law, 1883. 
Chap. 14. 


“Even, then, before there is any necessity for a legal 
sanction, we are able to assign perfectly distinct spheres 
to morality, to law, and to the individual will. So long, 
indeed, as morality and law exist in custom only, it is 
difficult to distinguish them, but when once they come to 
be expressed as rules, the distinction which I have been 
pointing out begins to be apparent.” 382. 


Maine, Ancient Law, 1861, new ed. by Pollock, 
1906. Chaps. 3, 4, 9. 

Maine, Early History of Institutions, 1874. Lect. 
13, 


LAW AND MORALS 127 


Pomeroy, Introduction to Municipal Law, 1864. 
§§ 10-14. 


“The municipal law, as actually administered in Europe 
and America, is composed of ethics and history.” 7. 


Pouhaer, Essai sur l'histoire générale du droit, 
1849. Chaps. 2, 3. 

Puchta, Cursus der Institutionen, 1841 (transl. in 
part in Hastie, Outlines of Jurisprudence, 
Loos) sadeue Ilastie, 61/20) 

“The jural and the moral view of a relation, when one 


of them is set up as exclusively valid, must assume a 
hostile attitude towards each other.” MHastie, 17. 


Pulszky, Theory of Law and Civil Society, 1888. 
pp. 316-332. 
Savigny, Vom Beruf unsrer Zeit fiir Gesetzge- 
bung und Rechtswissenschaft, 1814, (3 ed. 
1840), reprinted 1892, (transl. by Hayward as 
“The Vocation of our Age for Legislation and 
Jurisprudence,” 1831). 


Chap. 2. The classical statement of the doctrine of the 
nineteenth century historical school. 

A good account of this tract may be found in Small, 
“The Thibaut-Savigny Controversy,” 28 American Jour- 
nal of Sociology, 711-734. 


Savigny, System des heutigen romischen Rechts, 
1840. I, § 7. 


128 LAW AND MORALS 


Schmoller, Ueber einige Grundfragen des Rechts 
unad-der Volkswirtschaft, 1875. pp. 31-52. 


Historical-economic. 


Vinogradoff, Common Sense in Law, 1914. 
pp. 25-27, 56-60. 


“Law is clearly distinguishable from morality. The 
object of law is the submission of the individual to the 
will of organized society, while the tendency of morality 
is to subject the individual to the dictates of his own 
conscience.” 58, 


Vinogradoff, Historical Jurisprudence, 1, Intro- 
duction, 1920. pp. 43-52. 


Kantian. 


II 
ANALYTICAL 


Adams, Centralization and the Law, 1906. Lect. I. 
Mechanical sociological-analytical. 


“In the abstract, right and justice, as something beyond 
social convenience or, if you please, class advantage, are 
figments of the imagination. What you have, as a scien- 
tific fact, is an automatic conflict of forces reaching, along 
the paths of least resistance, a-result favorable to the 
dominant energy.” 35. 


Amos, Systematic View of the Science of Juris- 
prudence, 1872. pp. 77-78, 393-395, 514-516. 


LAW AND MORALS 129 


Amos, Science of Law, 1874. Chap. 3. 


“Not only are law and morality different, but they are 
the complement and, as it were, the very antitheses of one 
another.” 32, 


Austin, Jurisprudence (5 ed.) 1911. The first 
six lectures were published in 1832. Lect. 5. 
The classical exposition of the analytical theory. 

Bierling, Krittk der juristischen Grundbegriffe, 
LS / Apa as 

Bierling, Juristische Prinzipienlehre, I, 1894. 
pp. 68-70. 

Brown, The Austinian Theory of Law, 1906. 
pp. 34-55. 


A critique and exposition of Austin. 


Capitant, Introduction a Vétude du droit civil (3 
ed.) 1912. pp. 3-4. 


Social organization rests equally on law and morals. 
The precepts of both are obligatory; those of law are 
enforced by public authority, those of morals are ad- 
dressed only to the individual conscience. 

Dillon, Laws and Jurisprudence of England and 

America, 1894. pp. 11-20. 

Gareis, Encyklopidie und Methodologie der 

Rechtswissenschaft, 1887, (5 ed. by Wenger, 


130 LAW AND MORALS 


1920; 3 ed. transl. by Kocourek as “Introduc- 
tiom to the Science of Law” 1911) § 6, Ko- 
courek’s transl. 38-42. 

Goadby, Jntroduction to the Study of Law, 1910 
(2-edeioid we Chapa, 

Gray, Nature and Sources of the Law, 1909 (2 
ed. 1921), §§ 642-657 (2 ed., 302-309). 

Hearn, Theory of Legal Duties and Rights, 1883. 


“Law is . . . the result of many factors. Among 
these factors each of the forces I have mentioned—the 
sentiment of justice, the conviction of utility, the force of 
custom—holds a prominent place. If justice be not the 
basis of all our law, it is the basis of that great body of 
law which determines the reciprocal duties and rights of 
men in their mutual dealings. . . . But justice has no 
place in determining the wants and the wishes of the 
state. These are matters of policy and discretion, con- 
stantly shifting, just as the wants and the wishes of indi- 
viduals shift according to the circumstances of the case. 
It is in this part of our legal system that the principle of 
utility finds scope. . . . My present contention is that 
absolute duties rest mainly upon expediency and obliga- 
tions upon justice; and that general duties, since they 
relate partly to public policy and partly to private right, 
are governed, not by one of these principles exclusively, 
but by both. It must not, however, be forgotten that in 
these complex affairs no force acts altogether apart from 
other forces, and that reaction and interaction are in 
constant operation.” 70-71. 


LAW AND MORALS 131 


Holland, Elements of Jurisprudence, 1880 (12 ed. 
1917). 12 ed. 29-40. 


“The business of the jurist is, in the first place, to 
accept as an undoubted fact the existence of moral prin- 
ciples in the world, differing in many particulars in differ- 
ent nations and at different epochs, but having certain 
broad resemblances; and, in the second place, to observe 
the sort of sanction by which these principles are made 
effective. He will then be in a position to draw unswerv- 
ingly the line which divides such moral laws from the 
laws which are the subjects of his proper science.” 12 


ed. 30; 

Korkunov, General Theory of Law, (transl. by 
Hastings, 1909, 2 ed. 1922). First ed. in Rus- 
sian, 1887; the translation is from the 6th ed., 
1904. §§ 5-7. 

“Thus the distinction between morals and law can be 
formulated very simply. Morality furnishes the criterion 
for the proper evaluation of our interests; law marks out 
the limits within which they ought to be confined.” 1 
ed. 52. 

Markby, Elements of Law, 1870 (6 ed. 1905) 8S§ 
12-30. 


Nicol-Speyer, Systematische Theorie des heutigen 
Rechts, 1911. I, 196-208. 


Analytical social-utilitarian. 


132 LAW AND MORALS 


Pollock, Essays in Jurisprudence and Ethics, 


1882. pp. 18-30. 


A critique of Lorimer’s Institutes of Law from the 
analytical standpoint. 


Pollock, Oxford Lectures, 1890. pp. 13-17. 


A critique of metaphysical jurisprudence of the nine- 
teenth century as “ethical jurisprudence.” 


Pollock, First Book of Jurisprudence, 1898 (4 ed. 
1918). 4 ed. pp. 46-56. 


“Though much ground is common to both, the subject 
matter of law and of ethics is not the same. The field of 
legal rules of conduct does not coincide with that of moral 
rules, and is not included in it; and the purposes for 
which they exist are distinct.” 4 ed. 46. 


Pollock, Essays in the Law, 1922. pp. 68-79. 


A discussion of natural law in common-law decision 
and in the administration of justice in the British empire. 


Rattigan, Science of Jurisprudence (3 ed.) 1899. 
pp. 3-11. 


Roguin, La régle de droit, 1889. pp. 101-107. 
Salmond, First Principles of Jurisprudence, 1893. 
Chap. 1, especially §§ 14-18. 
A critique of the analytical view as to law and morals. 


Salmond, Jurisprudence, 1902 (6 ed. 1920). § 72. 


“Every right corresponds to a rule of right from 
which it proceeds, and it is from this source that it de- 


LAW AND MORALS 133 


rives its name. That I have a right to a thing means 
that it is right that I should have that thing.” 6 ed. 182. 
Stone, Law and its Administration, 1915. Lect. 2. 


Woodruff, Introduction to the Study of Law, 
1898. pp. 4-7. 


III 


PHILOSOPHICAL 
Abate Longo, Filosofia del diritto, 1885. I, 18-19. 


Ethics is the common foundation. Morals regard man 
with respect to his ultimate destiny; law regards him with 
respect to the conditionally good in an external social 
relation. 


Abbot, Justice and the Modern Law, 1913. Chap. 
bs 
Historico-metaphysical., 
“Legal obligation rests upon ethical obligation.” 3. 


Acollas, Introduction a létude du droit, 1885. 


Neo-Rousseauist natural law. Attacks the historical 
school. 


Acollas, L’idée du droit (2 ed.) 1889. pp. 9-10. 


“For men precepts (/Jois) are of two kinds. Both have 
for their end human nature, for their organ reason, for 
their sanction conscience. They differ in that the domain 
of the one tends to increase and that of the other to 
diminish, since conscience, the sole sanction of the one, 
gets from the other the supplement of an external and 


134 LAW AND MORALS 


social constraint. The former make up the science of 
morals, the latter the science of law. . . . Law is 
founded wholly upon freedom.” 


Ahrens, Cours de droit naturel, 1837 (8 ed. 1892). 
SedoTs $21 


Ahrens, Juristische Encyklopddie, 1855. pp. 35-39. 


Arndts, Juristische Encyklopddie, (2 ed. 1850). 
10 ed. by Grueber, 1901, § 13. 


There are four points of difference: (1) In law man is 
considered as a person, i.e., because he has a free will; 
in morals we have to do with determining the will toward 
the good. (2) Law considers man only in so far as he 
lives in community with others; morals give a guide to 
lead him even if he were alone. (3) Law has to do with 
acts in so far as they operate externally; morals look to 
the intention—the inner determination and direction of 
the will. (4) Law governs the will so far as it may by 
external coercion; morals seek a free self-determination 
toward the good. 


Baumgarten, Die Wissenschaft vom Recht und 
thre Methode, 1920. I, §§ 1-12, especially § 10 
(pp. 178-190). 

Beaussire, Les principes du droit, 1888. pp. 24-30. 


Kantian; much like the view of Amos, Science of 
Law, chap. 3. 


Bélime, Philosophie du droit, 1855 (4 ed. 1881). 
I, 173-282. 


Contrasts and distinguishes law and morals, 


LAW AND MORALS 135 


Binder, Rechtsbegriff und Rechtsidee, 1915. pp. 
121 ff. 


A critique of Stammler. 
Boistel, Cours de philosophie du droit, 1899. I, 
§§ 30-39. 


Follows the distinction made by Thomasius and shows 
how Pothier adopted the doctrine and even the termin- 
ology of Thomasius and has been followed by authorita- 
tive commentators on modern French law. pp. 64-65. 


Bonnecase, La notion de doitr en France au dix- 
neuvieme siecle. 1919. 
A review of the different nineteenth-century theories. 
Boucaud, Qu’est-ce que le droit naturel, 1906. 
AIRE ap ohep 


Revived natural law. 


Breuer, Der Rechtsbegriff, 1912. pp. 55 ff. 


Says that Stammler’s social science is a part of 
applied ethics. 


Carle, La vita del diritto (2 ed.) 1890. §§ 280- 
283. 


Metaphysical-psychological. 


Cathrein, Recht, Naturrecht und positives Recht, 
1901. 169-182. 


Neo-scholastic. 


136 LAW AND MORALS 


Charmont, La renaissance du droit naturel, 1910. 
pp. 200-216. (Translated in Modern French 
Legal Philosophy, 133-145.) 


Deals with the problem of legal precepts and the indi- 
vidual conscience. 


Cogliolo, Filosofia del diritto privato (2 ed.) 1891. 
Bk. I, § 8. 
Contrasts law and morals and argues a “complete 
separation between them.” 113. 
Cohen, Jus naturale redivivum, 1916. Reprinted 
from 25 Philosophical Review, 761. 
Courcelle-Seneuil, Préparation a étude du droit, 
1387. R 3; 


Adopts Jellinek’s theory of law as a minimum ethics. 
203. 


Cruet, La vie du droit, 1908. pp. 86-179. 


Positivist. 


Dahn, Vom Werden und Wesen des Rechts, 1879. 
Reprinted in Rechtsphilosophische Studien, 
291. Rechtsphilosophische Studien, 305-306. 
Ethics and law differ in principle. Morality is the 


rational means of internal peace, while law is the 
rational means of external peace. 


Del Vecchio, The Formal Bases of Law, (transl. 
by Lisle, 1914). The part referred to is a 


LAW AND MORALS 137 


translation of Il concetto del diritto, 1906. §§ 

96-111. 

Seeks to unify law and morals (§§ 107-108). 

“The truth of the alleged antinomy between law and 
morals is this: that an act can be the object of diverse 
judgments; and it can be weighed by individual criteria 
different from those molded in_ positive institutions. 
The antinomy does not exist between morals and law, 
but between different ethical criteria; all of which, duly 
applied, would give rise to a harmonious system of jurid- 
ical values, and within every system the logical rela- 
tions established would remain firm. We must remem- 
ber, therefore, that law and morals are correlated ethical 
categories, presupposing a common base.” § 108. 


Demogue, Les notions fondamentales du droit 
privé, 1911 pp. 13 ff., transl. in Modern 
French Legal Philosophy, 365 ff. 

Adopts Jellinek’s view—see 13 n. 3. 


“Law is that part of morals which seems to have such 
importance that social forces, organized or not, ought to 
make it their end to assure its application.” 13. 


Dewey and Tufts, Ethics, 1909. pp. 456-470, 
especially 467-468. 

Djuvara, Le fondement du phénoméne juridique, 
1913. §§ 93-99. 


“Without going so far as to affirm with some authors 
that the ‘end of law’ should be ‘the realization of morals,’ 


138 LAW AND MORALS 


for that would be an improper way of expressing oneself, 

one may say that that realization is implied by the idea of 

law—that it is one of its logical effects.” 194. 

Duguit, L’état, le droit objectif et la lot positive, 
1901. (Transl. in Modern French Legal Phi- 
losophy.) pp. 101-105, (transl. 305-308.) 


Law has its basis in social conduct. Morals goes on the 
intrinsic value of conduct. Hence it is vain to talk about 
law and morals. The legal criterion is not an ethical 
criterion. 


Duguit, Le droit social et le droit individuel (2 
ed.) 1911. 


Introduction and lects. 1, 2. 


Everett, Moral Values, 1918. pp. 309-312. 

Fichte, Grundlage des Naturrechts, 1796, new ed. 
by Medicus, 1908, (transl. by Kroeger as The 
Science of Rights, 1889). See Medicus, Fichte, 
1905, lect. 6. 


“Fichte deduces his conception of Recht wholly without 
regard to the Sittengesetz, and he finds deep distinctions 
between morals and law. The Sittengesetz categorically 
demands that one do his duty; the rule of law only allows 
but does not command that one exercise his right.” 
Medicus, 97. 


Fowler and Wilson, Principles of Morals, 1894. 
II, 145-159. 


LAW AND MORALS 139 


Fragapane, [1 problema delle origini del diritto, 
1896. pp. 174-191. 
Genetic-psychological. 

Geny, Méthode d’interprétation et sources en drott 
privé positif, 1899 (2 ed. 1919). §§ 160-163 (2 
ed. II, 93-113.) 


Neo-scholastic. - 


Geny, Science et technique en droit privé positif, 
1914, vol. ITI, 1921. I, $$ 13-20, IT, §§ 141-159, 
especially 156. 

Geyer, Geschichte und System der Rechts philoso- 
phie, 1863. pp. 3, 110-123. 


Follows Herbart. 
“Philosophy of law is a part of ethics.” 1. 


Green, Principles of Political Obligation, 1911. 
Reprint of lectures delivered 1879-1880. §§ 
137-147, pp. 142-153. 

Treats of the problem of conflict between the individual 
conscience and legal precepts. 

Grueber, Einfiihrung m die Rechtswissenschaft, 
1907 (5 ed. 1919). pp. 19-30. 

Gutberlet, Ethik und Naturrecht, (3 ed.) 1901. 
pp. 128-130. 

Roman Catholic theological. 


Law and right (Recht) cannot be separated from 
morality (Sittlichkeit). 


140 LAW AND MORALS 


Harms, Begriff, Formen und Grundlegung der 
Rechtsphilosophie, 1889. pp. 92-121. 


“The territory of law is the moral world, and within 
this law has a definite place.” 93. 


Hasner, Filosofie des Rechts, 1851. 8§§ 48-49. 
Contrasts law and morals. 


Hauriou, Principes de droit public (2 ed.) 1916. 
pp. 7-17. 


Metaphysical. 


Heck, Gesetzesauslegung und Interessenjuris- 
prudeng, 1914. 


A critique of theories of interpretation and applica- 
tion of legal precepts. 

Hegel, Grundlinien der Philosophie des Rechts, 
1821 (ed. by Gans, 1840, ned ed. by Lasson, 
1911). (Transl. by Dyde as Hegel’s Philoso- 
phy of Right, 1896). See Reyburn, The Ethi- 
cal Theory of Hegel, A Study of the Philosophy 
of Right, 1921. §§ 104-114. 

Herbart, Analytische Beleuchtung des Naturrechts 
und der Moral, 1836. See Berolzheimer, Sys- 
tem der Rechts und Wirthschaftsphilosophie, 
Il, § 36, iv; World’s Legal Philosophies, 248- 
252. 


Ethics on a basis of psychology; philosophy of law a 
branch of ethics. 


LAW AND MORALS 141 


Herkless, Jurisprudence, 1901. Chap. 6. 
Hegelian. 


Hildebrand, Recht und Sitte auf den primativeren 
wirthschaftlichen Kulturstufen (2 ed.) 1907. 
The relation of economic civilization to ethical custom 

and law. 

Jellinek, Die sozialethische Bedeutung von Recht, 
Unrecht und Strafe, 1878 (2 ed. 1908). Chaps. 
ies 


Psychological, analytical, social-utilitarian. 


Jhering, Der Zweck im Recht, 1877-1883 (4 ed. 
1904). The first volume is translated by Husik 
under the title, Law as a Means to an End, 
1913. Chap. 9 (Das Sittliche), the whole of 
vol. II. See especially II, 189 ff. 


The classical exposition of social utilitarianism. 


Jouffroy, Cours de droit naturel, 1835 (5 ed. 
fe) PANS ite ane 
Jung, Das Problem des natiirlichen Rechts, 1912. 
§§ 3-5. 
In the practical administration of justice, questions arise 
continually which cannot be solved by a smiple subsump- 
tion of states of fact under given legal precepts. Out of 


the whole field of the ethical, law puts force behind 
certain duties which thus become legal duties. Back of 


142 LAW AND MORALS 


this is the ethical basis of right and law. The process is 
one of ‘seeking to determine what is right and what 
wrong. § 10. 


Kant, Metaphysiche Anfangsgriinde der Rechts- 
lehre, 1797 (2 ed. 1798). (Transl. by Hastie 
as Kant’s Philosophy of Law, 1887). See 
Caird, The Critical Philosophy of Immanuel 
Kant, II, 292-350. 


Kantorowicz, Zur Lehre vom richtigen Recht, 
1909. 


A critique of the Neo-Kantian theory of just law from 

a sociological standpoint. 

Kirchmann, Grundbegriffe des Rechts und der 
Moral, 1869 (2 ed. 1873). See Sternberg, 
Kirchmann und seine Kritik der Rechtswissen- 
schaft, 1908. 2 ed. 104-114. 


A forerunner of social utilitarianism. Says that from 
the standpoint of jurisprudence, a right is desire plus 
power. 

Kohler, Rechtsphilosophie und Universalrechts- 
geschichte, in Holtzendorff, Enzyklopdadie der 
Rechtswissenschaft, 1, (6 ed. 1904, 7 ed. 1913). 
Not in prior editions. §§ 9, 10. 


Kohler, Einfiihrung in die Rechtswissenschaft, 
1902 (5 ed. 1919). § 1. 


From the _ historical-Neo-Hegelian standpoint. He 
recognizes a historical separation of law from ethical 


LAW AND MORALS 143 


custom, the former having the force of politically organ- 

ized society behind it. “The formation of morality as a 

higher order, above the legal order, ruling the individual 

not by a social compulsion, but by a religious precept or 

later through the power of an individual world-view, is a 

much later phenomenon.” 

Kohler, Lehrbuch der Rechtsphilosophie, 1908 
(3 ed. by Athur Kohler, 1923). (The first edi- 
tion transl. by Albrecht, as Kohler’s Philosophy 
of Law, 1914). 

Krause, Abriss des Systemes der Philosophie des 
Rechtes, 1828, enlarged and ed. by Roder as 
System der Rechtsphilosophie, 1874.  Abriss, 
pp. 128-150. 


Subordinates law to morals while contrasting them. 


Kriickmann, Einfiihrung in das Recht, 1912. § 2. 
Lasson, System der Rechtsphilosophie, 1882. §§ 
23-25. 
Hegelian. 


Lioy, Filosofia del diritto, 1875-1880. (Transl. by 
Hastie from the third Italian edition as Lioy’s 
Philosophy of Right, 1891). 

Hastie’s transl. I, 290-304. 

Lorimer, Institutes of Law (2 ed.) 1880. pp. 353- 

367. 


“The ultimate object of jurisprudence is the realization 
of the idea in the ideal of humanity, the attainment of 


144 LAW AND MORALS 


human perfection, and this object is identical with the 
object of ethics. i 


“The proximate object of jurisprudence, the object 
which it seeks as a separate science, is liberty. But 
liberty, being the perfect relation between human beings, 
becomes a means towards the realization of their perfec- 
tion as human beings. Hence jurisprudence, in realizing 
its special or proximate object, becomes a means towards 
the realization of the ultimate object which it has in com- 
mon with ethics.” 353-354. 


Lowenstein, Der Rechtsbegriff als Relations- 


begriff, 1915. pp. 39-68. 


Criticizes Jellinek and Stammler. 


Merkel, Juristische Encyklopddie (2 ed.) 1900. 
§§ 68-80. 


Social-utilitarian. 


Miceli, Principu di filosofia del diritto, 1914. §§ 
90-92. 


Psychological. 


Miller, Lectures on the Philosophy of Law, 1884. 
Lect. 13. 


Hegelian. 


Miller, The Data of Jurisprudence, 1903. Chap. 
6, “The Aim of Law.” 


LAW AND MORALS 145 


Miraglia, Comparative Legal Philosophy, transl. 
by Lisle, 1912, from the third Italian edition, 
1903. Chap. 8. 


Historico-metaphysical. 


Niemeyer, Recht und Sitte, 1902. 


Pagel, Beitrage zur philosophischen Rechtslehre, 
1914. pp. 60-81. 


Comments on Schuppe’s theory. 


Parsons, Legal Doctrine and Social Progress, 


rhe OM Ee 


Social-utilitarian analytical. 


Paulsen, System of Ethics, (transl. by Thilly, 
1899.) pp. 599-638. 


Phillipps, Jurisprudence, 1863. pp. 5-9. 


“The science of morality comprises that of juris- 
prudence.” 5, 


Picard, Le droit pur, 1899, reprinted 1910. Bk. 
9, The End of Law; Justice. 


Socialist, 


Radbruch, Eimfihrung in die Rechtsuissenschaft, 
1910. pp. 7-13. 


Substantially the same position as Jellinek. 


146 LAW AND MORALS 


Radbruch, Grundziige der Rechtsphilosophie, 
1914. pp. 74-81. 


Relativist psychological social-utilitarian. 
Rathkowski, Encyklopddie der Rechts und Staats- 
wissenschaften, 1890. §§ 8-47. 


Roder, Grundztige des Naturrechts (2 ed.) 1860. 
I, §§ 36-44. 


Krausean. Compare Lorimer. 


Rosmini-Serbati, Filosofia del diritto (2 ed.) 
1865. I, 18-27. 


Metaphysical, (Roman Catholic). 
Rothe, Traité de droit naturel, 1885. I, 27-83. 


Roman Catholic. 
Schein, Unsere Rechisphilosophie und Juris- 
prudeng, 1881. pp. 59-61. 


Schuppe, Grundziige der Ethik und Rechtsphil- 
osophie, 1881. pp. 282-292. 


Smith, G. H., Elements of Right and of the Law 
(2 ed.) 1887. §§ 455-481. 


A criticism of the analytical view as to law and morals, 
from the natural-law standpoint. 


Smith, Munroe, Jurisprudence, 1908. pp. 6-14. 


Social-philosophical. Distinguishes law and morals 
analytically. 


LAW AND MORALS 147 


Stahl, Philosophie des Rechts, 1829 (5 ed. 1878). 

5 ed. II, 191-195. 

A religious interpretation. Like the Roman Catholic 
jurists and the Herbartians, seeks to unify law and 
morals. 

Stammler, Wirthschaft und Recht, 1896 (2 ed. 

1905). §§ 31-33, 67-68, 95, 96, 99. 

Neo-Kantian social-philosophical. 


Stammler, Lehre von dem richtigen Rechte, 1902. 
pp: 21-32, 52-121, 146-168, 196-200, 285-291, 
316-386, 447-496. 

386, 447-496. 
“All positive law is an endeavor to be just law.” 31. 

Stammler, Wesen des Rechts und der Rechts- 
wissenschaft, in Systematische Rechtswissen- 
schaft (Kultur der Gegenwart) 1906. pp. xviii- 
XXVIII. 

Stammler, Theorie der Rechtswissenschaft, 1911. 
pp. 437-558. 

Stammler, Lehrbuch der Rechtsphilosophie, 1922. 

Stampe, Grundriss der Wertbewegungslehre, 
1912. I, 1-10. 

Social-utilitarian. 
Stephen, Science of Ethics (2 ed.) 1907. Chap. 4. 
Sternberg, Allgememe Rechtslehre, 1904. II, § 1. 


Social-utilitarian. 


148 LAW AND MORALS 


Steudel, Kritische Betrachtungen tiber die Rechts- 
lehre} 1884. pp. 162-171. 


Review of theories of the relation of law to ethics 
since Kant. 


Stirling, Lectures on the Philosophy of Law, 
18/59 bect, 3; 


Hegelian. 


Sturm, Die psychologische Grundlage des Rechts, 
1910. § 22 (pp. 135-155). 


Neo-Kantian. A critique of the biological-sociological 
theory. 


Tanon, L’évolution du droit et la conscience so- 


ciale, (3 ed.) 1911. pp. 170-176. 


Social-utilitarian. 


Taparelli, Saggto teoretico di diritto naturale, (2 
ed.) 1883. I, §§ 103-123. 


Tissot, Introduction philosophique a Vétude du 
droit, 1875. II, 228-271. 


Metaphysical. Contrasts law and morals. See the 
elaborate parallel, II, 252-255. 


Tourtoulon, Les principes philosophiques de V’his- 
toire du droit, 1919. (Transl. by Read as Phil- 
osophy in the Development of Law, 1922). -II, 
Chaps. 7, 14. 


LAW AND MORALS 149 


Trendelenburg, Naturrecht auf dem Grunde der 

Ethik, 1860 (2 ed. 1868). §§ 7-15. 

“The separation of the legal from the moral, of the 
enacted from the ethically customary, which leads to the 
external formal legality of the Pharisees, must be given 
up. The false independence of juristic science, which 
was supposed to be a forward step, has not only distorted 
law in theory, but in the life of the law has divested it of 
its value, has furthered the setting up of a mechanism of 
law, and has taken the soul from the conception of law.” 
2 ed. 21. 


Vareilles-Sommiéres, Les principes fondamen- 

taux du droit, 1889. 

Roman-Catholic natural law. Largely devoted to 
criticism of the doctrine of a natural right of revolution. 
Wallaschek, Studien zur Rechtsphilosophie, 1889. 

pp. 52-63. 

Watt, An Outline of Legal Philosophy, 1893. 

Shanses) hl 12. 

Hegelian, 

Whewell, Elements of Morality (4 ed.) 1862. 

pp. 209-230. 

Wundt, Ethics, (transl. by Titchener and others, 
1902-1907). I, 276-280; II, 135-136. 


150 LAW AND MORALS 
IV 


5 


SOCIOLOGICAL AND SocrAL PSYCHOLOGICAL 


Baldwin, Social and Ethical Interpretations (4 
ed.) 1906. Chap. 15. 


On conflict between the individual conscience and the 
law, see pp. 562-568. 


Bonnucci, L’orientazione psicologica dell’ etica e 
della filosofia del diritto, 1907. 


Cardozo, The Nature of the Judicial Process, 
1921. Lect. 2, “The Methods of History, Tra- 
dition, and Sociology ;” Lect. 3, “The Method 
of Sociology: The Judge as a Legislator.” 


Cosentini, Filosofia del diritto, 1914. 


General part, chap. 10, pp. 179 ff. Contains a good 
bibliography. 


Coudert, Certainty and Justice, 1914. Chaps. 1-3. 


An economic, class-interest interpretation. 

“The truth is that the courts are constantly oscillating 
between a desire for certainty on the one hand and a 
desire for flexibility and conformity to present social 
standards upon the other. It is impossible that in a pro- 
gressive society the law should be absolutely certain. It 
is equally impossible that the courts should render de- 
cisions conforming to the prevailing notions of equity 
without thereby causing a considerable degree of uncer- 
tainty, owing to the constant fluctuations in moral 
standards and their application to new and unforeseen 


LAW AND MORALS 151 


conditions. New opinions are often due to economic 
changes, and many views regarding natural rights or 
individual liberty which were held fundamental in the 
jast century sometimes find little support in the public 
opinion of the twentieth by reason of altered social and 
economic conditions.” 12-13. 


Ehrlich, Grundlegung der Soziologie des Rechts, 
1913. Chap. 4. 


The most important exposition of sociological juris- 
prudence. 


Hobhouse, Morals in Evolution, 1906. I, Chap. 3. 
Kornfeld, Soziale Machtverhaltnisse, 1911. § 16. 


The feeling of right as a source of law and an element 
in decision. 


Lagorgette, Le fondament du droit et de la 
morale, 1907. 


Social utilitarian. 


Letelier, Jenesis del derecho, 1919. 8§ 77-89. 

Levi, La société et Vordre juridique, 1911. 
Transl. from the Italian, published 1910. pp. 
95-114, 184-193, 344-375. 


Levi, Contributi ad una teoria filosofica dell’ 
ordine giuridica, 1914. §§ 4-6, 22-24. 


The relation of economics, law and morals: The con- 
sciousness of the individual ego—economics ; of the social 


152 LAW AND MORALS 


ego—law; of the autonomous ego—morality. So: indi- 
vidual valuation—economics; social valuation—law; uni- 
versal valuation—morality. 


McDougall, Social Psychology, (11 ed.) 1916. 
Chap. 15. 


Oertmann, FRechtsordnung und Verkehrssitte, 
A913 ppeleZe. 


Pontes de Miranda, Systema de ciencia positiva do 
direito, 1922. I, 391-426. 


Post, Die Grundlagen des Rechts, 1884. § 3. 


Biological-sociological. 

“The ultimate foundations of law and morals are the 
same. Law is only a branch of morals in the wider 
sense.” 18. 


Rolin, Prolégoménes a la science du droit, 1911. 
Psychological-sociological. 


“In reality every legal precept corresponds to a rule of 
morals in course of evolution. As it succeeds, the legal 
precept tends to make the observance of the moral rule 
universal. If all legal precepts attained their end they 
would disappear and the law as a social phenomenon 
would perish with them.” 124. 


Ross, Social Control, 1904. Chap. 11. 


Seitz, Biologie des geschichtlich positiven Rechts, 
1906-1910. II, 439-460. 


Biological-sociological. 


LAW AND MORALS 153 


Tarde, Les transformations du droit, 1894 (6 ed. 
1909), chap. 6. 


Psychological-sociological. 
Vacca, I] diritto sperimentale, 1923. pp. 50-55, 
163-189. 


Vaccaro, Le basi del diritto e dello stato, 1893. 
Transl. as Les bases sociologiques de droit et 
de état, 1898. French transl. 446-459, 


Biological-sociological. 
Vander Eycken, Méthode positive de l’nterpréta- 
tion juridique, 1907. §§ 39-42, 115-124. 
Vanni, Lezioni di filosofia del diritto (3 ed.) 1908. 
First publsihed 1901-1902. pp. 24-34. 


Psychological-sociological. 


Wurzel, Das juristische Denken, 1904. (Transl. 
in Science of Legal Method). pp. 62-66. Sci- 
ence of Legal Method, 371-377. 


Psychological-sociological discussion of the influence of 
ethics on juristic and judicial thinking. 


, INDEX 


Administrative justice, 66, 75 

Administrative tribunals, 59 

Ahrens, 107 

Ames, James Barr, 71 

Amos, Sheldon, 74, 75 

Analytical jurisprudence, method of, 
4 


-48 
Analytical school, 13, 24-25 
analysis of duty, 34-35 
Analytical theory, presuppositions 
of, 48-50 
Anglo-American law, heterogeneous 
content of, 119-122 
Application, distinction between 
moral principles and legal pre- 
cepts in respect of, 73-76 
Application of law, 58-61 
individualized, 76 
relation of ideals to, 53-54 
Aristotle, 7, 28, 77, 78, 101 
eRe, John, on law and morals, 
43-44 


Blackstone, 1, 9 
Bont mores, 29 


Burke, 102 

Casuist literature, 32 
Cicero, 7 

Coke, Sir Edward, 31 


Conscience, individual as measure 
of legal obligation, 93-96 

Consideration, 40, 41, 85, 86 

Contract, Roman law of, 97 

Cuoco, 102 

Currency, change in value of as 
affecting enforcement of con- 
tracts, 104-106 

Curtis, Mr. Justice, 100 

Custom, 17-18, 19-23 

relation of law to, 90 


Dillon, John F., 39 
Discretion, 62-63 
Duty, 33 


Eldon, Lord, 36 
Enacted law, ideal of complete body 
of, 49-50 
Equity, casuist literature and, 32-33 
maxims of, 58 


' Ethical Custom, 89, 90 


law as declaratory of, 92 
relation of law to, 122- 123 
Ethics, subordination of jurispru- 
dence to, 12, 108-116 


Fair competition, standard of, 60 
Fas, 29 

Fiduciary, standard of conduct of, 60 
Field, Mr. Justice, 121 


Germanic law, 22 

“Good Samaritan Cases,” 71, 73 
Gratitude, ee a legal duty, 71 
Gray, John C, 39 

Grotius, 8, 191 


Haldane, Lord, 90 

Harcourt, Sir W. V., 40 

Hard bargain, 85, 105 

Hegel, 15, 16 

Hemmingsen, 9 

Holmes, Mr. Justice, 34 

Historical jurisprudence, relation to 
Sightecath: century natural law, 


Historical school, 10, 16-18, 43 
Historicus, 40, 1 
Holt, Lord, 100 


Interpretation, 54-57, 65-66 
Austin on, 54-55 
genuine, 55-56 
spurious, 55 

Ius ciuile, 29, 31 


Jefferson, 94 

Jellinek, 110, 112 

Jhering, 89 

Journeymen Cordwainers’ Case, 98 

Judicial Decision, as evidence of the 

law, 52 

individualization of, 59, 60 
relation of ideals to, 53-54 

Judicial lawmaking, 54 
rte der meh from legislative, 

Jurisprudence, Greek theory of, 4-6 
recent tendencies in, 108-109 
relation to ethics, 4, 108-116 


INDEX 155 


relation to social sciences, 123-124 
pebernetibe of to ethics, 12, 108- 


Justinian, 7 


Kant, 10-12, 13, 103-106 
Kenyon, Lord, 
Kohler, 114-115 


Law, analytical theory of, 24-25 

as an aggregate of rules, 45, 46 

elements in the idea of, 25-27 

Greek theories of, 5, 27-28 

growth of, 

historical theory of, 24-25 

ideal of complete body of en- 
acted, 49-50 

identification of with morals, 32-36 

infusion of morals into, 33-34, 60 

medieval theory of, 7-8 

nature of, 24-27 

philosophical theory of, 26 

points of divergence ‘from mor- 
als, 77-84 

practical limitations upon, 70-71 

primitive, 27 

“pure fact of,’ 44-45 

ewe of to ethical custom, 122- 


Roman theory of, 6, 7 

state as the basis of, 14 

source of authority of, 18-19 

subordination of to morals, 108-115 

Law and Morals, analytical theory 

of, 63-66 

contrasts between, 103-108 

distinction with respect to subject 
matter, 68, 73 

distinction with respect to appli- 
cation, 73-76 


genetic peeoune of theories of, 
1 


Kant’s theory of, 103-106 

meaning of in "philosophical dis- 
cussions, 89, 90 

natural-law theory of relation of, 
92-102 

Neo-Hegelian theory of, 114-115 

Neo-Kantian theory rf 113-114 

opposition of, 37, 41-4 

pon of contact of 47- 48, 54, 59, 


points of divergence of, 30-32, 
77-84 

presupposition of analytical theory 
of, 48-50 


relation of problem to Greek phil- 
osophical theories, 117-119 
relation to separation of powers, 
47-48 
Zee utilitarian theory of, 112- 
3 


Lawmaking, distinction between leg- 
islative and judicial, 51 53 
judicial, 54 


Legal history, ethical interpreta- 
tion of, 17 

political interpretation of, 17 

Liability, ‘“‘insurance theory” of, 


relational theory of, 81 
Limitations, statute of, 2-3 
Lodge, Sir Oliver, 86, 87 


Mansfield, Lord, 36, 96, 98 
Maturity of law, 36-37 
Metaphysical school, 10-12 
Miller, Mr. Justice, 2 
Morality, external and internal, 70 
Moral duty, as legal duty, 33-36 
Morals, absolute theories of, 

as a source of law, 39 

as material for lawmaking, 66, 67 

as potential law, 33 

formulations of, 67 

identification of law with, 7, 32- 


Soin of law to, 12, 108- 
6 


Natural law, analytical and _ histori- 
cal, 44 
Bentham on, 99 
creative, 15 
ey niceres Ceutsty theories of, 14- 


ethical foundation of, 12 
historical theory of, 23-24 
medieval, 7-8 
metaphysical foundation of, 13 
nineteenth-century, 10-12 
relation to absolute theories of 
morals, 102 
rational foundation of, 13 
revived, 53-54, 87, 88 
Roman, 6 
theological foundation of, 
1213 
seventeenth-century, 9 
Negligence, contributory, 82, 83 
standard of, 60 
Neo-Hegelians, 114-115 


Ora oe 


156 INDEX 


Neo-Kantians, 113-114 
Nervous illness, recovery for, 79 
New trials, 243 


Paulsen, 84, 85 : 

ARS fe jurisprudence, origin 
or, 

sides Oty of law, revival of, 109- 


Physical nature, analogy of, 6 

Plato, 28 

Pothier, 97 

Privacy, right of, 80 

Protestant jurist theologians, 8 

A petctge individualization of, 
4. 


Quasi contract, 2-3 


Rationalism, 91, 92 

Respondeat superior, 81 

“Right of revolution,’ 95, 96 

Rights, distinguished from equitable 
or moral claims, 104-105 

Roman aa Greek ethical philosophy 
In, 

theory of as custom, 21-22 


Reales, mechanical operation of, 83, 
4 
Rutherforth, 101 


Sacrificial execution, 29 

Sanctions, 70-71 

Savigny, 16, 102 

Separation of powers, 46-48 

Slavery, how far founded in natural 
law, 100, 101 

Smith, Adam, 121 

Social control, 27-29 

Social philosophical school, 109-115 

Social utilitarians, 112-113 

Socrates, 28 

Stammler, 113-114 

Standards, legal, 60-61, 76 

Strict law, 30-32 


Theology, divorce of jurisprudence 
from, 8, 9 

Thomas Aquinas, 78 

Thomasius, 106 

Twelve Tables, 30 


Wilson, James, 1, 2, 9, 94,°95 


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